Rule2022-09300
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 53
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 2, 2022
Effective
June 1, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS issues regulations to implement management measures described in Amendment 53 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Gulf)(FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council)(Amendment 53). This final rule and Amendment 53 modify the allocation of Gulf red grouper catch between the commercial and recreational sectors as well as revise sector annual catch limits (ACLs) and annual catch targets (ACTs). The purposes of this final rule and Amendment 53 are to revise the red grouper sector allocations using the best scientific information available and to modify the allowable harvest of red grouper based on results of the recent stock assessment.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 84 (Monday, May 2, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 84 (Monday, May 2, 2022)]
[Rules and Regulations]
[Pages 25573-25590]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-09300]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 220426-0106]
RIN 0648-BK77
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Reef Fish Fishery of the Gulf of Mexico; Amendment 53
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues regulations to implement management measures
described in Amendment 53 to the Fishery Management Plan for the Reef
Fish Resources of the Gulf of Mexico (Gulf)(FMP), as prepared by the
Gulf of Mexico Fishery Management Council (Council)(Amendment 53). This
final rule and Amendment 53 modify the allocation of Gulf red grouper
catch between the commercial and recreational sectors as well as revise
sector annual catch limits (ACLs) and annual catch targets (ACTs). The
purposes of this final rule and Amendment 53 are to revise the red
grouper sector allocations using the best scientific information
available and to modify the allowable harvest of red grouper based on
results of the recent stock assessment.
DATES: This final rule is effective June 1, 2022.
ADDRESSES: Electronic copies of Amendment 53, which includes an
environmental assessment, a fishery impact statement, a Regulatory
Flexibility Act (RFA) analysis, and a regulatory impact review, and
electronic copies of a minority report submitted by four Council
members, may be obtained from the Southeast Regional Office website at
<a href="https://www.fisheries.noaa.gov/action/amendment-53-red-grouper-allocations-and-catch-levels">https://www.fisheries.noaa.gov/action/amendment-53-red-grouper-allocations-and-catch-levels</a>.
FOR FURTHER INFORMATION CONTACT: Peter Hood, NMFS Southeast Regional
Office, telephone: 727-824-5305, email: <a href="/cdn-cgi/l/email-protection#3444514051461a5c5b5b50745a5b55551a535b42"><span class="__cf_email__" data-cfemail="99e9fcedfcebb7f1f6f6fdd9f7f6f8f8b7fef6ef">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: NMFS and the Council manage the Gulf reef
fish fishery, which includes red grouper, under the FMP. The Council
prepared the FMP and NMFS implements the FMP through regulations at 50
CFR part 622 under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act).
On April 21, 2020, NMFS published a notice of intent to prepare a
draft environmental impact statement (DEIS) for Amendment 53 and
requested public comment (85 FR 22137). On December 9, 2021, NMFS
published a notice of availability for Amendment 53 and requested
public comment (86 FR 70078). NMFS approved Amendment 53 on March 9,
2022. On January 19, 2022, NMFS published a proposed rule for Amendment
53 and requested public comment (87 FR 2737). The proposed rule and
Amendment 53 outline the rationale for the actions contained in this
final rule. A summary of the management measures described in Amendment
53 and implemented by this final rule is described below.
Unless otherwise noted, all weights in this final rule are in
gutted weight.
Background
Red grouper in the Gulf exclusive economic zone (EEZ) are found
primarily in the eastern Gulf on offshore hard bottom areas and are
managed as a single stock with commercial and recreational ACLs and
ACTs. The allocation of the ACL between the commercial and recreational
sectors is currently 76 percent commercial and 24 percent recreational
and was set through Amendment 30B to the FMP in 2009 (74 FR 17603;
April 16, 2009).
Commercial red grouper fishing is managed under the Grouper-
Tilefish Individual Fishing Quota (IFQ) program, which began January 1,
2010, through Amendment 29 to the FMP (74 FR 44732; August 31, 2009,
and 75 FR 9116; March 1, 2010). Under the IFQ program, the commercial
red grouper quota is based on the commercial sector's red grouper ACT
(commercial quota), and red grouper allocation is distributed on
January 1 of each year to those who hold red grouper shares. Both red
grouper and gag, another grouper species managed under the IFQ program,
have a multi-use provision that allows a portion of the red grouper
quota to be harvested under the gag allocation, and vice versa. The
multi-use provision is based on the difference between the respective
ACLs and ACTs and is intended to reduce bycatch.
The recreational red grouper harvest is managed with catch limits,
in-season and post-season accountability measures (AMs), season and
area closures, a minimum size limit, and a recreational bag limit. The
in-season AM for red grouper requires NMFS to close the recreational
sector for the remainder of the fishing year when red grouper landings
reach or are projected to reach the recreational ACL. If recreational
landings exceed the red grouper recreational ACL in a fishing year, the
post-season AM requires NMFS to shorten the length of the following
recreational fishing season by the amount necessary to ensure landings
do not exceed the recreational ACT. If the red grouper stock is
overfished, NMFS must also reduce the ACL and ACT by the amount of the
recreational ACL overage in the prior year. The recreational red
grouper AMs were implemented in 2012 (77 FR 6988; February 10, 2012)
and were modified in 2013 (78 FR 6218; January 30, 2013).
In 2018, the Council received a recommendation from its Scientific
and Statistical Committee (SSC) to reduce the red grouper commercial
and recreational ACLs and ACTs, effective for the 2019 fishing year.
This recommendation was based on an interim analysis conducted by the
Southeast Fisheries Science Center (SEFSC). The Council also heard
concerns from fishermen about the condition of the red grouper stock
because commercial and recreational harvests were well below the
respective quota and ACL. The SSC did not recommend a new acceptable
biological catch based on the analysis but determined that the analysis
did support recommending that the Council reduce the 2019 total ACL
from 10.70 million lb (4.85 million kg) to 4.60 million lb (2.09
million kg). The Council noted the severe red tide conditions that
occurred in the summer and fall of 2018 off the Florida west coast and
decided to further reduce the total ACL to an amount equivalent to the
2017 harvest of 4.16 million lb (1.89 million kg). The Council took
action by initially requesting an emergency rule to reduce red grouper
ACLs and ACTs (84 FR 22389, May 17, 2019), and then making the harvest
reductions permanent in a subsequent framework action (84 FR 52036;
October 1, 2019).
The Southeast Data, Assessment, and Review (SEDAR) 61 assessment
was completed in September 2019, and used updated recreational catch
and effort data from the Marine Recreational Information Program (MRIP)
Access Point Angler Intercept Survey (APAIS) and Fishing Effort Survey
(FES). MRIP
[[Page 25574]]
began incorporating a new survey design for APAIS in 2013 and replaced
the Coastal Household Telephone Survey (CHTS) with FES in 2018. Prior
to the implementation of MRIP in 2008, recreational landings estimates
were generated using the Marine Recreational Fisheries Statistics
Survey (MRFSS). As explained in Amendment 53, total recreational
fishing effort estimates generated from MRIP-FES are generally higher
than both the MRFSS and MRIP-CHTS estimates. This difference is because
MRIP-FES is designed to more accurately measure fishing activity, not
because there was a sudden increase in fishing effort. Therefore, the
current red grouper total ACL and recreational ACL of 4.16 million lb
(1.89 million kg) and 1.00 million lb (0.45 million kg), respectively,
in MRIP-CHTS units, would be an estimated 5.26 million lb (2.39 million
kg) and 2.10 million lb (0.95 million kg), respectively, in MRIP-FES
units.
NMFS developed calibrations models to adjust historic effort
estimates so that they can be compared to new estimates from MRIP-FES.
The calibration methodologies are discussed in Amendment 53 as well as
in the SEDAR 61 final report. In response to comments on the integrated
DEIS, NMFS added information to Section 1.1 of Amendment 53 and
included links to the calibration peer reviews. However, this peer
review information has been publicly available since the reviews were
completed in 2017 and 2018. In addition, a publication titled ``Survey
Design and Statistical Methods for Estimation of Recreational Fisheries
Catch and Effort'' explains the different recreational fishing surveys
and the time-series calibration methods. This publication has been
available since 2018, and can be found at <a href="https://media.fisheries.noaa.gov/2021-09/MRIP-Survey-Design-and-Statistical-Methods-2021-09-15.pdf">https://media.fisheries.noaa.gov/2021-09/MRIP-Survey-Design-and-Statistical-Methods-2021-09-15.pdf</a>.
The SEDAR 61 assessment concluded that the Gulf red grouper stock
is not overfished and overfishing is not occurring, but that as of
2017, the stock remained below the spawning stock biomass (SSB) at 30
percent of the spawning potential ratio (SPR), where SPR is the ratio
of SSB to its unfished state. Based on the results of SEDAR 61, the
Council's SSC recommended an overfishing limit (OFL) of 5.35 million lb
(2.43 million kg) and an acceptable biological catch (ABC) of 4.90
million lb (2.22 million kg). Because these catch levels are in MRIP-
FES units, the recommended ABC appears to be greater than the current
total ACL of 4.16 million lb (1.89 million kg), but would actually
result in a decrease in allowable harvest when compared to the total
ACL in MRIP-FES units of 5.26 million lb (2.39 million kg). In
addition, these catch level recommendations assumed status quo sector
allocations for red grouper, which were based in part on 1986-2005
landings estimates generated by MRFSS. As explained in Amendment 53,
retaining the current sector allocations would increase the commercial
ACL but substantially decrease the recreational ACL when comparing like
units. Therefore, the Council requested that the SSC review alternative
catch level projections based on sector allocation alternatives that
used MRIP-FES data and several time series (1986-2005, 1986-2009, and
1986-2018). The SSC reviewed these alternative sector allocation
scenarios, affirmed that the SEDAR 61 (2019) assessment, which included
MRIP-FES recreational landings, represented the best scientific
information available, and provided alternative catch level
recommendations to the Council based on the allocation alternatives.
The commercial-recreational allocation impacts the catch level
projections produced by the assessment. As more of the total ACL is
allocated to the recreational sector, the proportion of recreational
discards increases. Recreational discard mortality rates are assumed to
be less than commercial discard mortality rates, but the magnitude of
recreational discards is considerably greater than commercial discards.
There are less than 850 vessel with commercial reef fish permits and
even less vessels on which red grouper is harvested. In each year from
2014 through 2018, between 374 and 384 commercial vessels were
associated with red grouper landings. NMFS does not have information on
the number of recreational anglers who harvest red grouper, but
recreational anglers are estimated, on average, to have taken over a
million trips per year between 2014-2018 on which they have caught red
grouper.
Generally, a fish caught and released by a recreational fishermen
has a greater likelihood of survival than by a commercial fishermen
because of how and where they fish. However, because of the much
greater numbers of red grouper that are released by the recreational
sector compared to the commercial sector, the total number of discards
that die from recreational fishing exceeds those from commercial
fishing. This higher discard mortality for the stock, as well as
assumed changes to the population structure that results from more
recreational harvest, results in a lower projected annual yield, which
means a lower OFL, ABC, and total ACL. However, change in discards is
not due to any change in how the recreational sector prosecutes the
fishery but occurs because MRIP-FES estimates higher levels of fishing
effort, and consequently a greater number of fish being caught, which
includes discards and the associated mortality of discarding fish.
In Amendment 53, the Council considered several allocation
alternatives: Maintaining the current allocation, maintaining the
current commercial ACL and allocating the remaining pounds to the
recreational sector, and using the various time series reviewed by the
SSC to adjust the allocation to reflect the most recent understanding
of historical landings. The Council decided to adjust the allocation
using the same years used to set the current allocation in Amendment
30B to the FMP (1986-2005). The Council determined that this would best
represent the historic landings for the years used in Amendment 30B
while accounting for the change from MRFSS data to MRIP-FES data.
Because the MRIP-FES landings estimates are greater than the previous
estimates of recreational landings estimates, the commercial-
recreational allocation would shift from 76 percent and 24 percent,
respectively, to 59.3 percent and 40.7 percent, respectively. Based on
the results of SEDAR 61 and using the revised allocation of 59.3
percent commercial and 40.7 percent recreational, the Council's SSC
recommended an OFL of 4.66 million lb (2.11 million kg) and an ABC of
4.26 million lb (1.93 million kg). The total ACL is equal to the ABC.
Management Measures Contained in This Final Rule
This final rule revises the sector ACLs and ACTs for the Gulf red
grouper stock.
Annual Catch Limits and Annual Catch Targets
The current commercial ACL and ACT are 3.16 million lb (1.43
million kg) and 3.00 million lb (1.36 million kg), respectively. The
current recreational ACL and ACT are 1.00 million lb (0.45 million kg)
and 0.92 million lb (0.42 million kg) in MRIP CHTS units, respectively.
In MRIP FES units, the current recreational ACL and ACT are estimated
to be 2.10 million lb (0.95 million kg) and 1.93 million lb (0.88
million kg), respectively.
As explained previously, the ABC associated with the preferred
allocation is 4.26 million lb (1.93 million kg) and the total ACL is
equal to the ABC. Applying the allocation selected by the Council in
Amendment 53 to the total
[[Page 25575]]
ACL results in a 2.53 million lb (1.15 million kg) commercial ACL and a
1.73 million lb (0.78 million kg) recreational ACL in MRIP FES units.
The Council did not apply the ACL/ACT Control Rule to set the
commercial buffer between the ACL and ACT. Normally, a sector managed
using an IFQ program without a commercial quota overage during its
reference period (as was the case for the reference period 2016-2019)
would yield a 0 percent buffer from the control rule. Instead, in
Amendment 53, the Council decided to continue using a buffer of 5
percent between the commercial ACL and ACT to allow red grouper and gag
share categories in the IFQ program to have a multi-use provision that
allows a portion of the red grouper quota to be harvested under the gag
multi-use allocation, and vice versa. Applying the 5 percent buffer to
the revised commercial ACL of 2.53 million lb (1.15 million kg) results
in a commercial ACT of 2.40 million lb (1.09 million kg).
The Council did apply the ACL/ACT Control Rule to set the
recreational sector buffer between the ACL and ACT. Using 2016-2019
MRIP FES landings data in the control rule produced a buffer of 9
percent, one percentage point greater than the current buffer. Applying
this 9 percent buffer to the revised recreational ACL of 1.73 million
lb (0.78 million kg) resulted in a recreational ACT of 1.57 million lb
(0.71 million kg) in MRIP FES units.
Minority Report
A minority report signed by four Council members raises several
objections to the preferred allocation in Amendment 53, including
allegations that the preferred allocation violates National Standards 4
and 9, as well as section 302(i)(6) of the Magnuson-Stevens Act. The
minority report also asserts that the Council did not follow its
allocation policy. These issues, which mirror some of the comments
received on the notice of availability for Amendment 53 and the
proposed rule, are addressed in this final rule.
Comments and Responses
NMFS received 81 comments on the notice of availability for
Amendment 53 and 102 comments on the proposed rule, including comments
containing signed letters as part of a petition. The petition, which is
opposed to Amendment 53, had 2,588 signatures. In general, anglers and
groups supporting recreational fishing are in favor of the revised red
grouper allocation in Amendment 53. Commercial fishermen, commercial
fishing organizations, seafood dealers and wholesalers, and seafood
restaurant organizations and owners oppose the revised allocation and
support maintaining the status quo allocation and the higher OFL, ABC,
and commercial ACL in Alternative 2 of Action 1. Some comments were
outside the scope of this action. These comments include suggestions
that additional red grouper management measures are necessary such as
allowing anglers to keep undersized fish, shortening the recreational
season, developing a tag system for red grouper recreational fishing to
make the sector more accountable, and eliminating the red snapper and
grouper-tilefish IFQ programs. Other comments expressed concern that
this action would result in less monitoring of red tide and suggested
that NMFS determine that red grouper be considered overfished based on
a previous minimum stock size threshold. NMFS has not made any changes
from the proposed rule to this final rule based on public comment.
Comments specific to Amendment 53 and the proposed rule are grouped
as appropriate and summarized below, each followed by NMFS' respective
response.
Comment 1: The Council did not follow NMFS' Policy Directive 01-
119, Fisheries Allocation Review Policy or NMFS' Procedural Directive
01-119-01, Criteria for Initiating Allocation Reviews. These directives
require the Council to undertake an allocation review before it
considers a potential change to an existing allocation in an amendment
document (i.e., an allocation action).
Response: The NMFS Allocation Review Policy recommends a three-step
process to ensure fisheries allocations are periodically evaluated to
remain relevant to current conditions: Trigger, review, evaluation of
options. Nothing in the policy states that the steps are mandatory or
that the review and evaluation of options must happen sequentially. The
Council initiated a review of the red grouper allocation through
Amendment 53 because SEDAR 61 included MRIP-FES calibrated recreational
landings data and the catch level advice provided by the SSC was in
MRIP-FES units. Amendment 53 incorporated both the Council's allocation
review and evaluation of options, and all of the relevant ecological,
economic, social, and performance factors identified in NMFS'
Procedural Directive 01-119-01 were considered in Amendment 53.
Comment 2: NMFS failed to comply with NEPA by using an
inappropriate no action allocation alternative for Action 1, not
considering a sufficient range of alternatives for Action 1, and not
taking a hard look at the environmental impacts.
Response: NMFS has complied with the requirements of NEPA. With
respect to the no action allocation alternative, a red grouper
management system is in place. Therefore, ``the `no action' alternative
may be thought of in terms of continuing with the present course of
action until that action is changed.'' (See ``Forty Most Asked
Questions Concerning CEQ's National Environmental Policy Act
Regulations'' (<a href="https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act">https://www.energy.gov/nepa/downloads/forty-most-asked-questions-concerning-ceqs-national-environmental-policy-act</a>).)
Consistent with this guidance, the no action alternative (Alternative
1) maintains the current allocation and catch levels in MRIP-CHTS
units. However, selecting this alternative would not be consistent with
the requirements of the Magnuson-Stevens Act because the best
scientific information available, which the SSC used to make its catch
level recommendations, indicates the OFL and ABC (and consequently
ACLs) need to be revised to incorporate MRIP-FES data and reflect the
condition of the stock. With respect to a reasonable range of
alternatives, six alternatives were considered in Action 1 including a
no action alternative. These alternatives considered maintaining the
current sector allocation percentages, adjusting the allocation
percentages by maintaining the current commercial ACL, and adjusting
the allocation percentages using three different time series in keeping
with amendment's need to ensure the allocation accurately reflects
historical participation of both sectors. In the analysis of these
alternatives as well as Action 2 alternatives to set the ACT buffer,
NMFS did take a hard look at the environmental impacts, explaining that
a shift in allocation to the recreational sector is expected to have
the most impact on red grouper discards because of how that sector
operates. In sum, the alternatives addressed the purpose and need laid
out in the final EIS and identified alternative ways of meeting the
need, and NMFS analyzed the physical, biological, economic, social, and
administrative impacts to the human environment of each alternative.
Comment 3: Because the comment period for the DEIS closed after the
Council made its decision to take final action and approve Amendment
53, the Council was not able to review all of the comments submitted to
NMFS before taking final action, and therefore, was not able to take
those comments into consideration in making its decision.
[[Page 25576]]
Response: Although NMFS and the Council try to have the comment
period on a DEIS close before the Council makes a decision to submit an
action to NMFS, there is no legal requirement to do so. The
environmental impact statement (EIS) for this action is incorporated
into the Council's plan amendment but is prepared under the National
Environmental Policy Act (NEPA), which requires that Federal agencies
consider the environmental impacts of their actions in the decision-
making process. NMFS is the Federal action agency for Amendment 53 and
is responsible for complying with NEPA. NMFS used comments submitted on
the DEIS to improve the final EIS and also used those comments to
inform NMFS on the decision to approve, disapprove, or partially
approve Amendment 53.
Consistent with the requirements of the Magnuson-Stevens Act, the
Council held public hearings during the development of Amendment 53.
These included discussion at several Council meetings, as well as at
several separate public hearings that focused solely on this amendment.
Therefore, stakeholders had numerous opportunities, both before and
after the DEIS was made available in May 2021, to provide input to the
Council before it made its decision to approve Amendment 53 at the June
2021 meeting.
Comment 4: NMFS improperly made changes to Amendment 53 after the
Council voted to submit the amendment for review and implementation.
These changes include post hoc justifications related to arguments made
in the minority report after the Council approved the amendment,
including the conclusion that closed seasons likely impose some
negative impacts on the red grouper stock and the revised allocation
might have no impact on discards because anglers may catch and discard
the same amount of red grouper whether their season is open or closed.
Response: At its June 2021 meeting, the Council expressly
authorized Council and NMFS staff to make any required editorial
changes to the amendment after it was approved by the Council. Further,
Amendment 53 is an integrated document that incorporates the
requirements of the Magnuson-Stevens Act, as well as other applicable
laws such as NEPA and the Regulatory Flexibility Act. As the Federal
agency responsible for NEPA compliance, NMFS published a DEIS and
responded to comments on the draft in the final EIS. As those responses
indicate, NMFS used comments submitted on the DEIS to improve the final
EIS. With respect to the assertion that any changes were post hoc
justifications related to arguments made in the minority report after
the Council approved the amendment, NMFS is responsible for approving
or disapproving Amendment 53, and any changes to the document were made
before that approval decision occurred.
The Bycatch Practicability Analysis (BPA) in Amendment 53 includes
a discussion of closed seasons and concludes in part that ``[t]he
benefits of the ACL reduction on red grouper bycatch may be partially
offset by the regulatory discards that would occur by fishermen that
target other species and catch red grouper should a closure occur for
the recreational sector.'' (page 215). Although an earlier draft
indicated that ``[c]losed season discards are not believed to be
significant in the recreational red grouper sector,'' this was in
reference to the February 1 through March 31 seasonal closure in waters
beyond the 20-fathom contour. This closure would be in effect
regardless of any action in Amendment 53 and would have no added effect
on discards. The final version of Amendment 53 provided additional
information in the BPA on closures noting general negative effects from
regulatory discards. These effects are also noted in other sections of
Amendment 53 (e.g., Section 3.3; page 48 and Section 4.1.2; page 97).
Comment 5: Amendment 53 is inconsistent with Section 303(a)(15) of
the Magnuson-Stevens Act and the National Standard (NS) 1 Guidelines
because the ACLs include only landed fish, not both landed and
discarded fish as required by the NS 1 Guidelines.
Response: Section 303(a)(15) requires the FMP to include ACLs and
AMs, and the NS 1 Guidelines define catch as including both landed fish
and dead discards (50 CFR 600.310(f)(3)(i)). However, the NS 1
Guidelines also state that the ABC, on which the ACLs are based, may be
expressed in terms of landings as long as estimates of bycatch and any
other fishing mortality not accounted for in the landings are
incorporated into the determination of ABC. The ABCs recommended by the
SSC were derived from SEDAR 61, which accounts for dead discards and
other sources of mortality (e.g., red tide).
Comment 6: The allocation adopted in Amendment 53 increases the
risk of overfishing and does not allow the fishery to harvest the
optimum yield (OY) because the high level of dead discards from the
recreational sector reduces the ABC.
Response: The allocation adopted in Amendment 53 does not
substantially increase the risk of overfishing or prevent achieving OY.
The risk of overfishing is the same under all of the allocation
alternatives considered by the Council. When the SSC recommended the
alternative OFLs shown in in Table 1.1.3 in Amendment 53 (page 7), the
SSC used the same probability of overfishing (P*) value of 0.5. A P* of
0.5 means that there is a 50 percent the chance of overfishing at that
level of harvest. For setting the ABC, the SSC used a more conservative
P* of 0.30, which corresponds to a 30 percent chance of overfishing.
Harvest by the commercial sector is constrained by the IFQ program. The
recreational harvest is constrained through bag limits, size limits,
and seasonal closures. Additionally, as discussed in Section 1.1 of
Amendment 53 (page 3), both in-season and post-season AMs are in place
to help constrain the recreational harvest to its ACL and prevent
overfishing. The recreational sector has exceeded its ACL only once in
the past 10 years as shown in Table 2.1.3 (page 20).
As explained below in response to Comment 15, the projected ABC
decreases as more fish are allocated to the recreational sector because
this allocation shift is expected to result in more encounters with red
grouper and higher overall discards, and is also expected to change the
age-specific population structure of the stock. However, this reduction
in the ABC and corresponding total ACL does not mean that the fishery
is not achieving OY on a continuing basis. OY is the long-term average
desired yield from a stock that provides ``the greatest overall benefit
to the Nation, particularly with respect to food production and
recreational opportunities'' and is reduced from the maximum
sustainable yield to take into account economic, social, and ecological
factors (16 U.S.C. 1802(33); 50 CFR 600.310 (e)(3)(iii)(A)). ACLs
represent the amount of fish available each year that is consistent
with achieving the long-term OY and preventing overfishing (50 CFR
600.310(f)(4)(iv)). With respect to red grouper, Secretarial Amendment
1 defined the OY as yield at 75 percent of F<INF>MSY</INF> where F
means fishing mortality rate and MSY means maximum sustainable yield
(<a href="https://gulfcouncil.org/wp-content/uploads/Secretarial-Amendment-1-2004-including-SEIS-RIR-and-IRFA-1_508Compliant.pdf">https://gulfcouncil.org/wp-content/uploads/Secretarial-Amendment-1-2004-including-SEIS-RIR-and-IRFA-1_508Compliant.pdf</a>). The SEDAR 61
results presented to the SSC in September 2019 assumed the status quo
allocation, and included projected catch at OY of over 6.4 million lb
(2.9 million kg). However, SEFSC staff cautioned the SSC that if the
2018 red tide event was
[[Page 25577]]
severe, there would be a high probability of overfishing if catch
levels were set using the OY projections. The projections using OY and
assuming a similar red tide event as occurred in 2005 would have
resulted in catch levels slightly below the 4.90 million lb (2.22
million kg) ABC originally recommended by the SSC (Figure 5.7 of SEDAR
61). After the Council requested that the SSC review various
alternative projection scenarios based on different allocations, the
SEFSC did not include additional projections using OY because, as
explained previously, the SSC determined that it was appropriate to use
a P* of 0.3 (30 percent probability of overfishing) to set an ABC.
However, similar to the projections using the SSC's desired approach,
any projections using the OY would have changed with a change in the
allocation. Thus, the sector allocation influences the total amount of
fish available for harvest, but does not affect the goal of achieving
OY (providing the greatest overall benefit to the Nation with respect
to both food production and recreational opportunities) on a continuing
basis.
The commercial and recreational sectors have different economic,
social, and cultural goals and objectives. Participants in the
commercial sector tend to seek to maximize harvest and efficiency while
participants in the recreational sector tend to seek to maximize access
and opportunities. These different goals and objectives impact fishing
behavior, which generally results in more discards by the recreational
sector. The results of SEDAR 61 and the catch level advice provide by
the Council's SSC require a reduction in the total ACL. Amendment 53
reduces each sector's catch levels by approximately the same
percentage, providing the greatest overall benefit to the Nation with
respect to both food production and recreational opportunities. While
the status quo allocation alternative (Action 1, Alternative 2)
advocated for by the commercial sector may result in the largest stock
ACL, it would not provide the greatest overall benefit to the Nation
because it would require the recreational sector to carry the full
burden of the reduction, resulting a in a much shorter recreational
fishing season and a related reduction in recreational opportunities.
Comment 7: Amendment 53 is inconsistent with NS 2 because the
revised allocation is based on MRIP-FES landing estimates, which have
not been determined to be the best scientific available information,
particularly by the Council's SSC. MRIP-FES does not provide realistic
estimates of historical landings because the fishery has changed since
1986 and the MRIP-FES landings estimates of historical landings are
highly uncertain. Any use of MRIP-FES data for allocation changes
should be delayed until the accuracy of this survey is improved.
Response: NMFS has determined that Amendment 53 is consistent with
NS 2 and that the MRIP-FES landings estimates represent the best
scientific information available. This determination is supported by a
September 8, 2021, memorandum from the SEFSC as well as the
recommendations for the Council's SSC. The SEDAR 61 stock assessment
incorporated landings data from the MRIP-FES survey, which is
considered a better survey than the prior MRIP-CHTS survey (see <a href="https://www.fisheries.noaa.gov/recreational-fishing-data/effort-survey-improvements">https://www.fisheries.noaa.gov/recreational-fishing-data/effort-survey-improvements</a>). In July 2020, the Council's SSC held a workshop on
calibrating MRIP-FES and MRIP CHTS (<a href="https://gulfcouncil.org/ssc/archive/">https://gulfcouncil.org/ssc/archive/</a>; July 2020). The SSC examined the differences in methodology
and outcomes between the fishing effort estimates produced by the
different surveys. At that time, the SSC recommended that the Council
wait for a stock assessment before adopting a different data unit for
quota monitoring, to better understand the effects of such a transition
on the stock from all perspectives. The SEDAR 61 stock assessment was
the first assessment to use the calibrated landings. As discussed in
the Section 1.1 of Amendment 53 (pages 3-7), the SSC accepted SEDAR 61
as the best scientific information available, specifically
acknowledging that it utilizes MRIP-FES recreational landings
estimates.
Comment 8: Amendment 53 violates NS 4 because the revised
allocation is not fair and equitable, it is not tied to an FMP
objective, forces the commercial sector to subsidize dead discards in
the recreational sector, and ignores catch limit overages by the
recreational sector as well as factors that would have increased the
commercial allocation. The revised allocation also fails to promote
conservation by allowing for an increase in the number of dead discards
from the recreational sector.
Response: NMFS has determined that Amendment 53 is consistent with
NS 4. As noted in Section 1.3 of Amendment 53 (page 8), the overall
goal of the FMP is to attain the greatest overall benefit to the Nation
with particular reference to food production and recreational
opportunities on the basis of the MSY as reduced by relevant
ecological, economic, or social factors. The FMP objectives that
support this goal and are tied to the revised allocation and catch
limits include preventing overfishing and promoting stability in the
fishery by allowing for enhanced fisher flexibility and increasing
fishing opportunities to the extent practicable.
The commercial sector is not subsidizing dead discards from the
recreational sector. Recreational fishing for red grouper (and many
other species) typically involves higher levels of discards, but the
Magnuson-Stevens Act includes recreational opportunities in its
definition of OY. In pertinent part, the Magnuson-Stevens Act defines
the optimum yield as the amount of fish which will provide the greatest
overall benefit to the nation with respect to food production and
recreational opportunities. The allocation implemented through this
final rule does result in less total annual harvest by both sectors.
However, as explained in response to Comment 6, the two sectors have
different objectives, and operate differently to achieve those
objectives. Participants in the commercial sector tend to seek to
maximize harvest and efficiency while participants in the recreational
sector tend to seek to maximize access and opportunities. These
different goals and objectives impact fishing behavior, which generally
results in more discards by the recreational sector. The Council and
NMFS must consider and account for these differences when determining
whether an allocation fairly and equitably allocates fishing privileges
and provides the greatest overall benefit to the Nation with respect to
both food production and recreational opportunities. In addition, as
explained in response to Comment 15, the shift in allocation to the
recreational sector impacts more than the discards assumed in the SEDAR
61 projections. It also changes the assumptions about the future
population structure of the stock, which also impacts the projected
allowable catch.
The revised allocation does not ignore catch level overages by the
recreational sector or factors that would have increased the commercial
allocation. As explained in the response to Comment 24, there was no
commercial-recreational allocation for red grouper prior to Amendment 1
to the FMP, and the recreational sector did not have a catch limit
until 2004 when a catch target of 1.25 million lb (0.57 million kg) was
put in place. In addition, both sectors exceeded their catch limits in
2004 and 2005, which are the final 2 years used to set the original
sector allocation and update the allocation in this amendment.
[[Page 25578]]
With respect to promoting conservation, the NS 4 Guidelines state
that a conservation and management measure ``may promote conservation
(in the sense of wise use) by optimizing the yield in terms of size,
value, market mix, price, or economic or social benefit of the
product.'' Consistent with section 303(a)(14) of the Magnuson-Stevens
Act, the NS 4 Guidelines also state that to the extent that it is
necessary to reduce the overall harvest in a fishery, any harvest
restrictions must be allocated fairly and equitably among the
commercial, recreational, and charter fishing sectors of the fishery.
The revised allocation promotes wise use by considering both the
biological impacts to the red grouper stock, including preventing
overfishing, and the economic and social impacts to fishery
participants. The revised allocation maintains the balance between
recreational access and commercial harvest. As explained in more detail
in the responses to Comments 11 and 24, maintaining the current
allocation would decrease the total ACL and recreational ACL, but
increase the commercial ACL. This would increase net economic benefits
in the commercial sector but would also decrease net economic benefits
in the recreational sector by a significantly larger amount, and result
in the largest decrease in net economic benefits to the Nation of all
the alternatives considered. In contrast, the revised allocation
reduces the commercial and recreational ACLs by similar percentages
(approximately 20 percent and 18 percent, respectively) and is expected
to result in the greatest net economic benefits to the Nation. With
respect to dead discards, SEDAR 61 assumes that dead discards from the
recreational sector increase as the allocation to that sector
increases, but does not take into account discards that occur during a
recreational season closure that NMFS must implement when the
recreational ACL is projected to be met. NMFS expects the preferred
allocation to allow the recreational season to remain open until mid-
December, whereas maintaining the current allocation would require a
closure in early August (Table 2.1.4 in Amendment 53). Thus, any
decrease in bycatch and bycatch mortality that may result under the
current allocation may be partially offset by an increase in regulatory
discards that occur when a recreational closure is in effect (Appendix
B of Amendment 53).
Comment 9: Amendment 53 violates NS 5 concerning efficiency because
there is no conservation crisis that justifies reducing the quota
available to the commercial sector, which more efficiently uses the
resource.
Response: NMFS has determined that Amendment 53 is consistent with
NS 5. NS 5 requires that conservation and management measures, ``where
practicable, consider efficiency in the utilization of fishery
resources; except that no such measure shall have economic allocation
as its sole purpose.'' Neither NS 5 nor the NS 5 guidelines require a
``conservation crisis'' as a precursor for management action. The NS 5
Guidelines explain that ``given a set of objectives for the fishery, an
FMP should contain management measures that result in as efficient a
fishery as is practicable or desirable'' (50 CFR 600.330(b)). The
preferred sector allocation alternative best reflects the historical
participation by the commercial and recreational sectors, fairly and
equitably distributes the needed reduction in catch between the
sectors, and provides the greatest net economic benefits to the Nation.
Therefore, Amendment 53 is consistent with the requirement to, where
practicable, consider efficiency in the utilization of fishery
resources.
Comment 10: Amendment 53 violates NS 8 because it fails to identify
the fishing communities that may be adversely affected by the reduction
in allowable harvest, it benefits some fishing communities at the
expense of other fishing communities, and it would maximize adverse
economic impacts to fishing communities associated with the commercial
sector.
Response: NMFS disagrees that Amendment 53 is inconsistent with NS
8, which requires that conservation and management measures take into
account the importance of fishery resources to fishing communities in
order to provide for the sustained participation of those communities,
and to the extent practicable, minimize adverse economic impacts on
those communities. Fishing communities that are associated with
commercial and recreational fishing and can be identified as having
some relationship with red grouper harvest are identified in section
3.5 of Amendment 53 (pages 85-92). The communities associated with
commercial fishing were identified using the regional quotient (RQ) for
pounds of red grouper landed by county homeport. The RQ is the amount
of red grouper landed within a particular geographical location out of
all red grouper landed within the region. With respect to those
communities associated with recreational fishing, NMFS does not have
information about red grouper landed in a particular geographical
location. Therefore, NMFS choose those communities because of their
location and likely participation in the red grouper component of the
reef fish fishery. Given the reduction in the total ACL and sector
ACLs, most, if not all, communities are expected to be adversely
affected, and because the allocation implemented through this final
rule will result in a reduction in the commercial and recreational
catch levels by approximately the same percentage, no fishing
communities are benefiting at the expense of other fishing communities.
Rather, as explained in response to Comment 6, this rule will provide
the greatest overall benefit to the Nation with respect to both food
production and recreational opportunities.
Preferred Alternative 3 in Action 1 would likely maximize adverse
economic impacts to fishing communities associated with the commercial
sector because the expected reduction in commercial gross revenue is
the largest among the considered alternatives. However, the differences
in the gross revenue reductions between Alternatives 4 and 5 and
Preferred Alternative 3 are relatively small, and thus so would be the
differences in economic impacts on these communities. While
Alternatives 2 and 6 in Action 1 would either benefit or result in no
economic impacts to fishing communities associated with the commercial
sector, these alternatives would have the greatest adverse economic
impacts to fishing communities associated with the recreational sector.
The preferred allocation alternative is expected to provide for
sustained participation of all of the identified fishing communities
and, to the extent practicable, minimize adverse economic impacts on
those communities by taking into account the different objectives of
the commercial and recreational sectors, and fairly and equitable
distributing the required reduction in the total allowable harvest.
Comment 11: Amendment 53 violates NS 9 because the revised
allocation would increase bycatch and dead discards from the
recreational sector.
Response: NS 9 requires that conservation and management measures,
``to the extent practicable: (1) Minimize bycatch; and (2) to the
extent bycatch cannot be avoided, minimize the mortality of such
bycatch.'' Conservation and management measures must also be consistent
with all of the other national standards and maximization of net
benefits to the Nation. As the NS Guidelines explain, several factors
should be considered when determining consistency with NS 9. These
factors include population
[[Page 25579]]
effects for the bycatch species; changes in the economic, social, or
cultural value of fishing activities, and non-consumptive uses of
fishery resources; changes in the distribution of benefits and costs;
and social effects (50 CFR 600.305(d)(3)). As explained in response to
Comment 6, the impacts to the red grouper stock are similar under all
of the allocation alternatives considered by the Council because the
alternative OFLs are based on a fixed level of fishing mortality. As
explained in response to Comment 15, when the inputs into the stock
assessment model include more recreational harvest than previously
assumed, this leads to lower OFL and ABC estimates at equilibrium.
Therefore, the new allocation allows for less total harvest than the
current allocation. However, based on the results of SEDAR 61, a
reduction in the total ACL is required under any of the allocation
alternatives and the new allocation more evenly distributes the adverse
economic and social effects that are expected to result from the
required reduction. As explained in Section 4.1.3 of Amendment 53
(pages 98-104), although Alternative 2 (retaining the current
allocation) would increase net economic benefits in the commercial
sector, it would also decrease net economic benefits in the
recreational sector by a significantly larger amount, which would not
only result in a decrease in net economic benefits to the Nation, but
in fact the largest decrease of the alternatives considered. Thus,
under Alternative 2 (as well as Alternative 6, which would retain the
current commercial ACL), the adverse economic and social effects of the
required reduction in the stock ACL would be borne entirely by the
recreational sector. In contrast, the allocation implemented through
this final rule will reduce net economic benefits for both sectors and
results in the smallest reduction in net economic benefits to the
Nation of the alternatives considered. Similarly, as discussed in
Section 4.1.4 of Amendment 53 (pages 105-109), the recreational sector
would experience negative social effects under Alternatives 2 or 6,
while these alternatives would result in positive or neutral social
effects for the commercial sector. The allocation implemented through
this final rule will more evenly distribute the adverse economic and
social effects that are expected to result from the required reduction
in the total ACL.
The commercial and recreational sectors have different economic,
social, and cultural goals and objectives, and NMFS must consider and
account for these differences when determining compliance with the
national standards, including whether Amendment 53 minimizes bycatch to
the extent practicable. Given the numerous factors that the Council
must consider in selecting the appropriate allocation, Amendment 53
does minimize bycatch and bycatch mortality to the extent practicable.
Comment 12: The FMP does not include a standardized bycatch
reporting methodology (SBRM) for the recreational sector as required by
the Magnuson-Stevens Act.
Response: NMFS and the Council recently completed a review of SBRMs
for both Gulf and joint Gulf-South Atlantic FMPs. NMFS and the Council
determined that the current SBRMs meet the purpose of section
303(a)(11) of the Magnuson-Stevens Act, as described in 50 CFR
600.1600, by specifying a SBRM to collect, record, and report bycatch
data in a fishery that, in conjunction with other relevant sources of
information, are used to assess the amount and type of bycatch
occurring in the fishery and inform the development of conservation and
management measures that, to the extent practicable, minimize bycatch
and bycatch mortality. NMFS and the Council further determined that the
SBRMs met the four requirements under 50 CFR 600.1610(a)(2). The
methodology (1) addresses information about the characteristics of the
bycatch occurring in the fishery; (2) is feasible from cost, technical,
and operational perspectives; (3) is designed so that the uncertainty
associated with the resulting bycatch data can be described,
quantitatively or qualitatively; and (4) addresses how the data
resulting from the methodology are used to assess the amount and type
of bycatch occurring in the fishery. The review describes the SBRMs
currently used by NMFS and the Gulf states for the recreational sector
of the reef fish fishery (see <a href="https://www.fisheries.noaa.gov/southeast/bycatch/2022-standardized-bycatch-reduction-methodology-sbrm-five-year-review">https://www.fisheries.noaa.gov/southeast/bycatch/2022-standardized-bycatch-reduction-methodology-sbrm-five-year-review</a>). The review recognized that all recreational data sources have
a high level of uncertainty because self-reported data are not
generally considered overly reliable and not all recreational fishermen
are surveyed, and the Council recommended evaluation and coordination
with state and Federal partners to improve bycatch data collection in
the future.
Comment 13: NMFS has not been forthcoming about how it converted
the historical recreational landings estimates for red grouper used to
develop sector allocation alternatives in Amendment 53. This violates
Section 302(i)(6) of the Magnuson-Stevens Act, which requires in part
that interested parties have a reasonable opportunity to respond to new
data or information before the Council takes final action on
conservation and management measures. In particular, the conversion
factor the agency used to convert MRIP-FES landing estimates to MRIP-
CHTS landings observed during 2015-2017, cannot reliably convert MRFSS
recreational landings estimates for red grouper over the base period of
1986-2005.
Response: The calibration methods used to convert recreational
landings to MRIP-FES are described in Amendment 53 (see Section 1.1,
subsection titled ``Red Grouper Recreational Data and Recalibration,''
pages 4-5). This description provides appropriate references and links
to websites containing supporting documentation and peer review to
assist the public looking for more information on how landing estimates
from past years were converted to MRIP-FES. As noted previously, this
peer review information has been publicly available since the reviews
were completed in 2017 and 2018, and a publication titled ``Survey
Design and Statistical Methods for Estimation of Recreational Fisheries
Catch and Effort'' explains the different recreational fishing surveys
and the time-series calibration methods and has been available since
2018 (<a href="https://www.fisheries.noaa.gov/resource/document/survey-design-and-statistical-methods-estimation-recreational-fisheries-catch-and">https://www.fisheries.noaa.gov/resource/document/survey-design-and-statistical-methods-estimation-recreational-fisheries-catch-and</a>).
There is also information specific to red grouper recreational landings
provided in Section 2.4 of the SEDAR 61 Assessment Process Report
(<a href="https://sedarweb.org/sedar-61">https://sedarweb.org/sedar-61</a>; pages 17-24) that is referenced in the
Amendment 53 subsection cited above.
NMFS has been forthcoming and transparent about the conversion
methodology, and summarizes the conversion methodology here. MRIP catch
estimates are generated using information from two independent surveys:
Numbers of angler fishing trips are estimated using the MRIP-FES and
catch rates by species are estimated using the APAIS. Total catch for
private boat and shore anglers is estimated as the product of both
survey outputs. Separate and different calibration methods were
developed to account for the extensive design changes made when the
MRIP-FES replaced the previous MRIP-CHTS, including the data collection
mode change from telephone to mail and the significant but less
extensive improvements to the
[[Page 25580]]
APAIS design. A well-established mixed effects model small area
estimation approach based on a 3-year benchmarking period (2015-2017)
was developed to calibrate legacy MRIP-CHTS-based fishing effort
estimates to account for the MRIP-CHTS to MRIP-FES design change
effects, as well as deteriorating MRIP-CHTS response rates and survey
frame coverage in later years. The calibration approach to address the
APAIS design improvements employed a sample weight adjustment technique
known as raking ratio estimation or iterative proportional fitting.
This approach was selected in part because it did not require a bench
marking period, which would not have been feasible given logistical and
funding constraints associated with the APAIS.
Comment 14: Amendment 53 does not explain how NMFS estimated the
status quo recreational ACL in MRIP-FES units (MRIP-FES equivalent)
shown in Table 2.1.1.
Response: At the October 2019 Council meeting the SEFSC provided a
presentation on SEDAR 61 (<a href="https://gulfcouncil.org/wp-content/uploads/B-7b-SEDAR61-Council_with-MRIP-conversions.pdf">https://gulfcouncil.org/wp-content/uploads/B-7b-SEDAR61-Council_with-MRIP-conversions.pdf</a>). In this presentation,
2017 recreational landings estimates in both MRIP-CHTS and MRIP-FES
were provided. The 2019 emergency rule and subsequent framework set the
recreational ACL in MRIP-CHTS units based on 2017 landings, as approved
by the Council (84 FR 22389; May 17, 2019 and 84 FR 52036; October 1,
2019). These recreational landings were estimated to be 1.00 million lb
(0.45 million kg) in MRIP-CHTS units and 2.10 million lb (0.95 million
kg) in MRIP-FES units. The current recreational ACL is based on the
estimated 2017 recreational landings of 1.00 million lb (0.45 million
kg) in MRIP-CHTS units. Therefore, Table 2.1.1. also shows the MRIP-FES
equivalent of 2.10 million lb (0.95 million kg) in MRIP-FES units.
Comment 15: Under Preferred Alternative 3 for the allocation
action, the commercial sector loses 1,190,000 lb (539,775 kg) of quota
compared to maintaining the existing allocations under Alternative 2
while the recreational sector only gains an increase of 550,000 lb
(249,476 kg). This leaves the remaining 640,000 lb (290,299 kg) to
cover increased dead discards from the recreational sector. In
addition, it is not clear how the ABCs for the different allocations
were derived and what methodology was used to estimate dead discards
that went into these calculations.
Response: The comment reflects an incorrect assumption that the
640,000 lb (290,299 kg) difference noted in the comment is all dead
discards from the recreational sector, as well as a misunderstanding of
how projections are derived. Section 5 of the SEDAR 61 Stock Assessment
Report (pages 147-151) and the presentation given by the SEFSC at the
September 2019 SSC meeting (<a href="http://gulfcouncil.org/scientific-and-statistical-meetings/archive/">gulfcouncil.org/scientific-and-statistical-meetings/archive/</a>, September 17-18, 2019 meeting, meeting materials
part 1, Agenda item VIb) describe the standard projection approach and
the model assumptions. The projections assume that fishing behavior
will remain the same as the terminal year of the assessment (2017),
including fleet-specific selectivity patterns, discard mortality, and
retention. The stock dynamics (including numbers-at-age and biomass-at-
age) are projected forward in time 100 years under these assumed
conditions, and stock status and catch advice is derived using
equilibrium conditions (i.e., when the stock abundance levels off). The
catch advice for each projection scenario considered in Action 1 (with
the exception of Alternative 6), was specific to a set of assumptions,
with the only difference being the allocation between the commercial
and recreational sectors (presented to Council's SSC in January 2020;
<a href="http://gulfcouncil.org/scientific-and-statistical-meetings/archive/">gulfcouncil.org/scientific-and-statistical-meetings/archive/</a>, January
9, 2020 meeting, meeting materials, agenda item 08). As shown in
Figures 4.28 and 4.29 of the SEDAR 61 assessment, the recreational
sector selects for smaller and younger fish compared to the commercial
sector. Therefore, an increase in allocation to the recreational fleet
results in more encounters and higher overall discards (of which 11.6
percent will die). However, shifts in allocations also ultimately
change the age-specific population structure of the stock. Harvest of
larger numbers of smaller, younger fish result in a smaller overall
population at equilibrium. Therefore, when the inputs into the
assessment model include more recreational harvest than previously
assumed, this leads to lower OFL and ABC estimates at equilibrium. The
OFL and ABC for Alternative 6 were obtained after determining the
allocation which would maintain the commercial ACL at 3.16 million lb
(1.43 million kg) as described in Amendment 53 (page 17). After the
allocation percentages were obtained for this scenario (68.7 percent
commercial and 31.3 percent recreational), the SEDAR 61 assessment
model was projected again to confirm that the allocation was maintained
as expected, and used to obtain the corresponding OFL and ABC.
Comment 16: Amendment 53 cites the SEFSC ACL Monitoring Datasets as
the source of landings estimates used to calculate allocation
percentages. These datasets are not directly available to the public,
yet they are the basis for reallocation, and have errors and
inconsistencies that call them into question. It is difficult to assess
how NMFS determined which dataset is the best available science.
Response: The ACL Monitoring Datasets are included in an internal
data file that is produced by the SEFSC and shared with the NMFS
Southeast Regional Office. This data file is not publicly available
because the file contains confidential data, such as Southeast Region
Headboat Survey estimates. Recreational data for the most recent SEDAR
61 stock assessment (terminal year of 2017) were provided for the
assessment in November 2018 and June 2019, and included recreational
landings in weights according to SEFSC weight estimation methodology.
NMFS would not expect these data to be a perfect match to the ACL
Monitoring Datasets because of quality assurance and quality control
checks and other improvements in methodology that have been made since
SEDAR 61, such as revising the sample size for SEFSC weight estimation
(Dettloff and Matter 2019). Starting in 2019, NMFS made substantial
improvements to the automation and streamlining of recreational data
sources as can be seen in standard recreational working papers in more
recent stock assessments (e.g., <a href="http://sedarweb.org/sedar-68-scamp-data-process">http://sedarweb.org/sedar-68-scamp-data-process</a>).
The MRIP data in weights that are available on the public NMFS MRIP
website are not the weight estimates that are used for stock
assessments or ACL monitoring in the Southeast US. The SEFSC has a
custom procedure for weight estimation (Dettloff and Matter 2019),
which has also been described in detail at past public meetings,
including the SSC workshop on calibrating MRIP-FES and MRIP CHTS
(<a href="https://gulfcouncil.org/ssc/archive/">https://gulfcouncil.org/ssc/archive/</a>; July 2020) and the April 2021
Council meeting.
Commercial landing estimates vary over time as estimates are
revised to account for new information; however, they generally only
vary by a few percentage points. Accounting for the exact cause for the
differences in estimates would require a forensic analysis which would
be overly time consuming and prohibitively expensive to NMFS. However,
total landings from SEDAR 12, which were used for the current
allocation, and the ACL
[[Page 25581]]
Monitoring Datasets are very similar, as shown in Table 2.1.2 of
Amendment 53 (pages 19-20).
Comment 17: Amendment 53 states the recreational ACL has only been
exceeded in 2013; however, the revised MRIP-FES-based landings indicate
that the recreational sector exceeded its catch limits for at least 2
years in the base period, 2004 and 2005.
Response: It is inappropriate to compare the MRIP-FES calibrated
landings to past ACLs because those ACLs are in MRFSS or MRIP-CHTS
units. Further, the recreational ACL was not established until 2009 in
Amendment 30B (73 FR 68390; November 18, 2008). Prior to Amendment 30B,
there was a recreational catch target of 1.25 million lb (0.57 million
kg) put in place in 2004, and Table 2.1.2 in Amendment 53 (pages 19-20)
shows that recreational landings in 2004 and 2005 did exceed that
target (69 FR 33315; June 15, 2004). In response to that overage, the
Council developed several management measures such as bag limit
reductions, closed seasons, and the prohibition of a bag limit for for-
hire captain and crew to constrain the recreational harvest to its
catch target. These measures were implemented by NMFS in 2006 (71 FR
3018; January 19, 2006; 71 FR 34534; June 15, 2006 and 71 FR 66878;
November 17, 2006) and are described in Section 1.4 of Amendment 53
(pages 9-13).
Comment 18: The red grouper fishery is improving because fishermen
are encountering more small sized red grouper that are entering the
fishery.
Response: NMFS agrees that the red grouper stock appears to be
improving. However, when the Council began work on Amendment 53 in
October 2019, the results of SEDAR 61 indicated that red grouper catch
levels need to be reduced. The Council took final action to submit
Amendment 53 for review and implementation during its June 2021
meeting. At that same meeting, the Council recognized that it would be
informative to have the SSC review the results of an interim analysis
conducted by the SEFSC that was expected to be completed in August 2021
and incorporated more recent information. Therefore, the Council
directed staff to begin work on a new framework action to modify red
grouper catch limits as appropriate after the SSC's review on the
interim analysis in August 2021. This is consistent with the NS 2
Guidelines, which recognize that new information often becomes
available between the amendment initial drafting and submission for
final review, and suggests that that new information be incorporated
where practicable, but note that it is not always necessary to start
the amendment process over again. In this circumstance, the Council has
already acted to address new information through the new framework
action that would increase the catch limits implemented through this
final rule. The Council took final action on this framework action at
their October 2021 meeting.
Comment 19: The Council failed to recalculate historical ACLs for
red grouper as was done for other species, like king mackerel.
Response: The Council was not required to request an analysis that
recalculated the historical ACLs for red grouper. One Council member
did make this request at the June 2021 Council meeting. However, this
was the meeting at which the Council was reviewing the final draft of
Amendment 53 and the Council determined that it was appropriate to
submit the amendment for review and implementation without waiting for
any additional analysis. NMFS has reviewed Amendment 53 as submitted by
the Council and determined that it is consistent with the Magnuson-
Stevens Act and other applicable law.
Comment 20: Why was the Florida Fish and Wildlife Conservation
Commission's (FWC) Gulf Reef Fish Survey (GRFS) not used for the
allocation decision.
Response: The Council did look at GRFS landings at its June 2020
meeting. Although discussed in Amendment 53, this survey was not used
to revise the allocation because it was not provided for consideration
in the SEDAR 61 assessment that generated the current OFL and ABC
recommendations.
Comment 21: The red grouper stock seems healthy and, therefore,
this action is not needed.
Response: SEDAR 61 was completed in September 2019 and used updated
recreational catch and effort data from MRIP-APAIS and FES, which
collectively estimated larger catch and effort data than previously
calculated for the recreational sector. The assessment concluded that
red grouper in the Gulf is not overfished and overfishing is not
occurring, but the stock remained below the SSB at 30 percent of the
SPR in 2017. After reviewing SEDAR 61 at its September 2019 meeting,
the SSC decided to treat the 2018 red tide event as similar to the red
tide event observed in 2005 for the purpose of OFL and ABC projections.
These projections recommended by the SSC form the basis for the
allocation alternatives in Amendment 53 and indicate that the stock,
while not overfished, is below the long-term average target biomass
level that results from harvesting at the MSY proxy.
Comment 22: Amendment 53 arbitrarily applies an ACT buffer to the
commercial sector but not the recreational sector, and the commercial
sector is subject to an in-season ACT while the recreational sector has
a post-season ACT.
Response: This comment mistakenly refers to the commercial ACT
(quota) as an AM for the commercial sector. The commercial AM is the
Grouper/Tilefish IFQ program put in place through Amendment 29 to the
FMP (74 FR 44732; August 31, 2009 and 75 FR 9116; March 1, 2010). As
mentioned in the Background information in this final rule, the red
grouper commercial ACT (quota) is the amount of fish distributed to IFQ
shareholders at the beginning of the fishing year and is used to
calculate gag multi-use allocation. Multi-use allocation allows
fishermen to use a small portion of their allocation for one species
(either red grouper or gag) to harvest another species (either gag or
red grouper). Multi-use allocation is intended to reduce commercial
discards and is derived at the beginning of each year by converting a
portion of the pounds of allocation available for red grouper and gag
to allocation that can be used for either species. The formula for gag
and red grouper multiuse allocation shown below uses both the ACT
(quota) and ACL.
[[Page 25582]]
[GRAPHIC] [TIFF OMITTED] TR02MY22.271
The 9 percent buffer between the ACL and the ACT for the
recreational sector is based on the application of the Council's ACL/
ACT Control Rule and is explained in Amendment 53 (pages 23-28). The
purpose of this control rule is to account for management uncertainty.
The recreational ACL for red grouper is used for an in-season AM that
closes the recreational sector if NMFS determines that the ACL would be
met or projected to be met during the fishing year. The ACT is used as
a post-season AM. If the recreational ACL is exceeded in a fishing
year, then the ACT is used to limit recreational harvest in the
subsequent fishing year.
Comment 23: Recreational fishermen may not understand that the
proposed recreational catch limits, although an increase from the
current catch levels, are really a reduction. They may mistakenly
anticipate a longer red grouper season.
Response: Amendment 53 includes a recreational season closure
analysis and includes tables with estimated season lengths as well as
the degree of uncertainty in the estimates indicated through 95 percent
confidence intervals for Action 1 allocation alternatives (see Table
2.1.4; page 21) and for each alternative combination between Actions 1
and 2 (see Table 2.2.4; page 26). For the revised allocation and ACL
implemented through this final rule, the predicted season closure date
is December 19, but the 95 percent confidence limits suggest a season
closure could occur as early as August 15 or not at all as a result of
reaching the recreational ACL.
Comment 24: The premise for Gulf red grouper sector reallocation is
flawed and would reward recreational overharvesting because it would
credit the recreational sector for revised annual landing estimates
based on MRIP-FES landing estimates and ignore the fact that the
recreational sector was likely exceeding its allocation during the base
time period (1986-2005).
Response: The current sector allocation is based in part on
estimates of historical recreational landings that the best scientific
information available now indicates are incorrect. These historical
landings were updated to the MRIP-FES units in the SEDAR 61 stock
assessment, the most recent red grouper stock assessment. That
assessment is the basis for the catch level advice recommended by the
Council's SSC. SEDAR 61 and the SSC's ABC recommendations require a
reduction in the total ACL when compared to the status quo in MRIP-FES
units. The revised allocation implemented through this final rule
accounts for the new information about historical recreational landings
by modifying the allocation percentages based on the same 1986-2005
time series as the original allocation. Retaining the current
allocation of 76 percent commercial and 24 percent recreational would
result in a shift of the ACL to the commercial sector because MRIP-FES
generally estimates higher recreational landings than the MRFSS, which
was the survey used to generate the recreational landings used for the
current allocation (Table 2.1.2; pages 19-20). This shift to the
commercial sector is reflected in Alternative 2 of Action 1, which
retains the current allocation percentage but updates catch limits
based on the new assessment. When using the same MRIP-FES units for
comparison, that alternative would increase the commercial ACL
(approximately 18 percent) while significantly decreasing the
recreational ACL (approximately 44 percent). In contrast, under the
Council's preferred alternative, both the commercial and recreational
ACLs would be reduced by approximately the same percentage
(approximately 20 percent and 18 percent, respectively).
Further, during the 1986-2004 period there was no commercial-
recreational allocation for red grouper. In 1990, NMFS implemented
Amendment 1 to the FMP, which set a 10-year rebuilding plan for red
grouper and established a framework procedure for setting allocations
when setting the total allowable catch (TAC) (55 FR 2078; January 22,
1990). The framework procedure stated that allocations should be based
on historical percentages harvested by users among each sector during
the base period of 1979-1987. Because commercial grouper landings were
not identified by species until 1986, the ratio for all groupers based
on historical percentages harvested by each sector during the base
period of 1979-87 was 65 percent commercial and 35 percent
recreational.
As explained in Section 1.4 of Amendment 53 (pages 9-13), the
commercial harvest of red grouper was first subject to a quota with the
implementation of Amendment 1, but at that time red grouper was part of
the shallow-water grouper complex, which had an overall commercial
quota of 9.2 million lb (4.2 million kg). The commercial shallow-water
grouper quota was subsequently increased for the 1991 and 1992 fishing
years. In 1993, the shallow-water grouper TAC, which previously had
only been specified as a commercial quota, was specified as a total
harvest of 15.1 million lb (6.8 million kg) with 9.8 million lb (4.4
million kg) allocated to the commercial quota. The remaining 5.3
million lb (2.4 million kg) was available to the recreational sector.
Recreational landings of red grouper in MRIP-FES units during that time
did not exceed 4.3 million lb (2.0 million kg) (see Table 2.1.1 in
Amendment 53; page 15). In 2004, with the final rule for Secretarial
Amendment 1, NMFS put into place a rebuilding plan for red grouper that
established a specific commercial quota and a recreational catch target
for red grouper of 5.31 million lb (2.41 million kg) and 1.25 million
lb (0.57 million kg), respectively (69 FR 33315; June 15, 2004).
However, this was not considered an allocation, but instead a
reflection of current fishing activities and a strong red grouper year-
class entering the fishery. NMFS predicted the ratio would change to a
greater recreational harvest as the strong year-class moved out of the
fishery through aging. As shown in
[[Page 25583]]
Table 2.1.2 of Amendment 53 (pages 19-20), both sectors exceeded their
catch limits in 2004 and 2005.
Comment 25: Amendment 53 does not reallocate to the recreational
sector, but is a technical correction to the current allocation to
account for historical landings that were underestimated by past
recreational surveys.
Response: The revised allocation does shift some of the allowable
harvest from the commercial sector to the recreational sector. However,
because SEDAR 61 incorporates the new MRIP-FES recreational landings
estimates and the revised recreational catch limits will be in MRIP-FES
units, maintaining the current allocation of 76 percent commercial and
24 percent recreational would result in a reallocation to the
commercial sector. This would increase the commercial ACL
(approximately 18 percent) and decrease the recreational ACL in MRIP-
FES units (approximately 44 percent). The revised allocation
implemented through this final rule incorporates the change in
recreational landings estimates over the same period used to calculate
the current allocation. This results in an allocation of approximately
60 percent commercial and 40 percent recreational, and reduction in
both the commercial and MRIP-FES adjusted recreational ACLs by
approximately the same percentage.
Comment 26: The proposed sector allocation is not fair because the
Council is unbalanced and biased toward the recreational sector, and
this bias is evident in the revised allocation selected by the Council.
Response: Council members are trustees of the Nation's fishery
resources and each Council member must take an oath of office in which
they ``promise to conserve and manage the living marine resources of
the United States of America by carrying out the business of the
Council for the greatest overall benefit of the Nation'' (50 CFR
600.220). Council members must also adhere to high standards of ethical
conduct (50 CFR 600.225). Therefore, NMFS expects Council members take
to make decisions that are best for the fishery resources as a whole
versus for a particular sector. Further, regardless of who sits on the
Council, NMFS must determine whether Amendment 53 is consistent with
the Magnuson-Stevens Act and other applicable law, and NMFS has
determined that the revised allocation is fair. As explained in Comment
24, the Council selected the preferred allocation alternative because
it best represents the historical landings for the years originally
used to establish the allocation while also accounting for the change
in the estimation of recreational harvest from MRFSS data to MRIP-FES.
In addition, the preferred alternative more evenly distributes the
reduction in the total ACL required by the results of SEDAR 61 and the
ABC recommendations from the SSC, reducing the commercial and
recreational ACLs by similar percentages (approximately 20 percent and
18 percent, respectively).
Comment 27: The revised allocation takes commercial quota from
commercial fishermen without compensation.
Response: Neither the commercial sector, nor any individual person
has a vested property interest in the commercial sector's red grouper
ACT (commercial quota). Therefore, no person or group of persons is
entitled to receive compensation as part of the revised allocation.
Comment 28: Commercial fishing businesses that buy red grouper
annual allocation will be hurt by Amendment 53 because the supply of
annual allocation is being reduced, which will increase the price of
annual allocation. Some individuals reported they had seen a two- to
three-fold increase in the price of annual allocation. Different
commenters noted that either this effect was not discussed in the
economic analysis of Amendment 53 or that this effect was discussed,
but projections of the expected increase were not provided.
Response: The economic analysis in Amendment 53 does indicate the
price of annual allocation for red grouper is expected to increase
because of the reduced commercial quota. However, the magnitude of that
increase was not projected because there are effectively only eight
data points representing different average annual allocation prices at
different commercial quota levels that could be used as a basis for a
projection, which is insufficient to generate a statistically valid
estimate. Further, the revised commercial quota of 2.40 million lb
(1.09 million kg) is outside the bounds of the existing data points,
which would further decrease the validity of any estimate that might be
generated based on the existing data. New annual allocation price data
for red grouper do indicate that the price has increased since the
Council decided to submit Amendment 53 for review and implementation.
However, this information was not available to the Council prior to its
decision. In addition, while an increase in the annual allocation price
would be expected to increase costs and decrease profits for commercial
fishing businesses that buy red grouper annual allocation, it would
simultaneously and equivalently benefit those businesses that sell red
grouper annual allocation by increasing their revenues and profits. The
opposite effects occurred when the commercial red grouper quota was
increased significantly from 5.72 to 7.78 million lb (2.59 to 3.53
million kg) in late 2016 (81 FR 70365; October 12, 2016). Changes in
the annual allocation price only result in the transfer of economic
benefits and costs between buyers and sellers and therefore do not
affect the estimate of net economic benefits to the Nation.
Comment 29: Commercial fishing operations targeting red grouper
will not be able to mitigate the adverse economic effects from the
implementation of Amendment 53 because they cannot switch to other
species.
Response: As discussed on pages 55-63 of Amendment 53, the
businesses that possess Gulf red grouper shares and annual allocation
also possess shares and annual allocation for other species or species
groups managed by IFQs in the Gulf, most notably for red snapper, which
makes up the largest part of their share and annual allocation
portfolios. Further, most of these businesses also have a Federal Gulf
of Mexico reef fish permit that can be used to harvest non-IFQ reef
fish species, and many also possess permits for non-reef fish species.
The fact that businesses engaged in the commercial harvest of Gulf red
grouper also harvest other species is illustrated in Table 3.4.1.20 of
Amendment 53 (page 64). Further, any businesses that do not possess
shares and annual allocation for other IFQ species have the option to
purchase them through the markets for shares and allocation, which is a
fundamental purpose of the market-based IFQ programs the Council
implemented.
Comment 30: Amendment 53 did not provide estimates of the economic
impacts (e.g., employment, income, value-added, and output) for the
Gulf red grouper commercial sector and did not demonstrate that the
reduction in the commercial sector's economic impacts exceeds the
reductions in the recreational sector's economic impacts.
Response: The economic impact estimates referred to in the comment
are provided in the discussion of the commercial sector's economic
impacts on pages 72-74 of Amendment 53 based on average values from
2014-2018. Some of the comments received also provided estimates of the
commercial sector's economic impacts based on more recent data provided
by industry for 2021, but did not provide 2021 economic impact
estimates for the recreational sector, and then compared those to the
average economic impacts
[[Page 25584]]
for the recreational sector from 2014-2018 provided in the amendment.
The NS 2 Guidelines require that FMPs take into account the best
scientific information available at the time of preparation (50 CFR
600.315(e)). The Guidelines recognize that new information may become
available between initial drafting of an FMP and its submission for
final review, and suggest incorporating that new information as
practicable; but that it is unnecessary to start the FMP process over
again, unless the information indicates that drastic changes have
occurred in the fishery that might require revision of the management
objectives or measures. Here, the 2021 estimates were not available
before the Council took final action on Amendment 53, and comparing
economic impacts between the sectors from different time periods is not
appropriate. The reduction in economic impacts in the commercial sector
due to the actions in Amendment 53 are provided on page 156 of
Amendment 53, while the reduction in economic impacts in the
recreational sector is discussed on pages 157-158 (based on whether the
recreational sector is managed to its ACL or ACT). These estimates do
show that the reduction in economic impacts in the commercial sector
are higher than in the recreational sector.
Comment 31: The analysis in Amendment 53 underestimated the
reduction in net economic benefits to the commercial sector because
indirect and induced economic impacts estimated by an economic impacts
model such as IMPLAN were not included in that estimate.
Response: Indirect and induced economic impacts (i.e., employment,
income, output, and value-added) to a particular state or the Nation
and changes to those impacts as estimated by an economic impacts model
do not measure net economic benefits. The commenters confuse the
results from an economic impact analysis with net economic benefits.
Economic impact models are intended to describe the flow of resources
through an economy and are not estimates of welfare as reflected in the
calculation of net economic benefits. Net economic benefits are
measured by the combination of consumer and producer surplus in each of
the affected sectors. Therefore, indirect and induced impacts are not
germane to the determination of net economic benefits to the Nation and
thus are not considered in the benefit-cost analysis.
Comment 32: The analysis underestimated the reduction in gross
revenue to the commercial sector. Specifically, the commercial sector
would lose 1.19 million lb (0.54 million kg) in red grouper landings
and each pound lost would have an ex-vessel price of $4.83/lb ($10.65/
kg).
Response: The loss in commercial landings is actually 600,000 lb
(272,155 kg) when comparing the status quo commercial ACT (quota) of
3.00 million lb (1.36 million kg) to the commercial ACT (quota) of 2.40
million lb (1.09 million kg) implemented through this final rule. The
quota actually received and available to the commercial sector for
landing purposes is the ACT, not the ACL. A sector cannot lose what is
never received. In addition, the commenters compared the commercial ACL
under Preferred Alternative 3 for Action 1 to the commercial ACL under
Alternative 2 rather than the status quo commercial ACL, which is not
the appropriate comparison. Further, the analysis also indicates that
the ex-vessel price is expected to increase by $0.51/lb ($1.14/kg) from
$4.83/lb ($10.65/kg) to $5.34/lb ($11.77/kg) because of the decrease in
landings, thereby partially mitigating the loss in landings.
Comment 33: The expected increase in the ex-vessel price for red
grouper will be passed along to consumers, causing economic harm to
those consumers.
Response: This comment assumes that relative supply and demand
conditions are the same at the ex-vessel and retail levels, which is
unlikely. Although it is possible that some of the ex-vessel price
increase may be passed along to consumers, it is highly unlikely that
all or even most of it would be passed along to consumers because the
number of good substitutes available to buyers increases as product
moves further up the distribution chain. For example, if Gulf red
grouper has become relatively more expensive by the time it reaches the
retail level, many consumers will simply switch to other substitute
products as they would have become relatively cheaper compared to Gulf
red grouper (e.g., other Gulf groupers, red grouper and other groupers
from the Atlantic, various snapper species from the Gulf and Atlantic,
imports of grouper or snapper, other types of seafood and protein
sources, etc.). Several other comments from buyers up the distribution
chain indicate these substitution effects are likely. As a result of
these substitution effects, NMFS expects a fairly strong demand
response for Gulf red grouper at the retail level, thereby keeping the
price from increasing much if at all.
Comment 34: The economic analysis in Amendment 53 either did not
provide an estimate of the expected loss in consumer surplus to the
commercial sector, the loss in consumer surplus was underestimated, or
the approach used to estimate the loss in consumer surplus was invalid.
Response: Amendment 53 includes an analysis of the expected change
in consumer surplus to the commercial sector in the discussion of
direct and indirect economic effects on pages 98-99. This analysis is
based on an Inverse Almost Ideal Demand System model provided by
Keithly and Tabarestani (2018) that was included in the 5-year review
of the grouper-tilefish IFQ program. The Council's SSC reviewed this
study at their March 2017 meeting and raised no concerns regarding its
validity. Inverse demand models that make use of ex-vessel rather than
retail level data are often used when retail level data are not
available, as was the case in this instance. These models generate
estimates of either demand elasticity or flexibility, which can then be
used to estimate expected changes in ex-vessel price and thus changes
in consumer surplus when landings are expected to change. The use of
indirect demand models is not novel (see <a href="https://spo.nmfs.noaa.gov/sites/default/files/TM111.pdf">https://spo.nmfs.noaa.gov/sites/default/files/TM111.pdf</a>), and in fact their use has been subject
to peer review in other cases (see <a href="https://www.mafmc.org/s/scup_allocation_review_panel_report_FINAL.pdf">https://www.mafmc.org/s/scup_allocation_review_panel_report_FINAL.pdf</a>). Further, as noted in
the amendment, the estimated loss in consumer surplus should be
considered a maximum estimate because the flexibility estimate is not
compensated for income. In fact, because ex-vessel level data were used
rather than retail level data and demand flexibility would likely be
less at the retail level than at the ex-vessel level for reasons noted
above, NMFS' estimate of the loss in consumer surplus is likely an
overestimate of the actual change in consumer surplus. But it is still
the best estimate given available data.
Comment 35: The economic analysis in Amendment 53 ignored changes
in producer surplus in the commercial sector beyond the harvesting
sector, or available estimates on mark-ups should have been used to
generate such estimates.
Response: These issues are addressed in the description of the
economic environment on page 70 of Amendment 53. On average, purchases
of Gulf red grouper represented approximately 17 percent of all seafood
purchases by Gulf red grouper dealers between 2014 and 2018. While this
suggests these dealers have some dependency on purchases of Gulf red
grouper, it is far less than the percentage of revenue that Gulf red
[[Page 25585]]
grouper represents for commercial vessels (46 percent). In addition,
these dealers' dependency on Gulf red grouper purchases steadily
declined from 2014 through 2018, as they accounted for 22 percent of
their total seafood purchases in 2014 but only 12 percent of their
total seafood purchases in 2018. Also, the ability of federally
permitted seafood dealers to change which species they purchase is
greater than commercial vessels' ability to change which species they
harvest. Unlike commercial vessel permits, dealer permits do not
restrict which species dealers can purchase. Further, although Keithly
and Wang (2018) estimate the mark-ups between the ex-vessel price and
dealer sales price for Gulf red grouper and certain other grouper and
tilefish species, those estimates are insufficient to estimate producer
surplus for Gulf red grouper dealers, or changes to producer surplus as
a result of regulatory changes. This is in part because costs other
than the raw fish costs (which are equivalent to the ex-vessel value)
are not taken into account. NMFS does not have estimates of those other
costs for Gulf red grouper dealers, or seafood dealers more broadly,
and thus does not have estimates of net cash flow or net revenue from
operations for Gulf red grouper dealers comparable to those in the
commercial harvesting sector. Thus, while it is likely that the harvest
of Gulf red grouper generates some producer surplus for Gulf red
grouper dealers, NMFS does not possess the data to estimate that
producer surplus. Further, because these dealers have the ability to
switch to purchasing other species, changes to those values as a result
of the management measures considered in Amendment 53 are likely to be
relatively small. Similarly, any additional producer surplus generated
from Gulf red grouper sales further up the distribution chain to
wholesalers/distributors, grocers, and restaurants is likely minimal,
given the vast number of seafood and other products they sell and their
even greater ability to shift to purchasing other substitute products
should the availability of Gulf red grouper decrease and/or its price
increase.
Comment 36: The harvest of recreationally harvested fish does not
generate net economic benefits to the Nation or positive economic
impacts, and retaining the current allocation in Alternative 2 of
Action 1 would not have any discernible adverse economic effects on
recreational anglers or for-hire operations.
Response: NMFS disagrees with these comments. The description of
the economic environment explains how the recreational sector generates
economic value (net economic benefits) to the Nation on pp. 82-83,
while the discussion on pp. 83-85 illustrates the positive economic
impacts generated by the recreational sector. Further, the analysis on
pages 101-104 of Amendment 53 demonstrates the adverse effects that
retaining the current sector allocation would have on recreational
anglers and for-hire operations.
Comment 37: The revised sector allocation increases economic value
(net economic benefits) to the recreational sector relative to the
status quo, or leads to a disproportionately higher reduction in net
economic benefits to the commercial sector relative to the recreational
sector.
Response: Tables 4.1.3.3 (page 101) and 4.1.3.7 (page 104) in
Amendment 53 demonstrate that net economic benefits to the commercial
sector are expected to decrease by about 9.1 percent while net economic
benefits to the recreational sector are expected to decrease by about
15.5 percent, assuming recreational harvest is limited to its ACL. The
percentage reduction to the recreational sector would be even higher if
recreational harvest is limited to the ACT. Thus, the net economic
benefits to the recreational sector are expected to be reduced under
the revised sector allocation relative to the status quo and the
reduction to the recreational sector is proportionally higher than in
the commercial sector.
Comment 38: The willingness to pay estimate of $110 per fish (2019
dollars) for Gulf red grouper harvested by recreational anglers used to
generate the economic value (consumer surplus) estimates in Amendment
53 does not represent the best scientific information available and,
more generally, the use of stated preference models to generate
willingness to pay estimates for recreationally harvested fish is not
scientifically valid. Therefore, use of that estimate is inconsistent
with NS 2 concerning scientific information. Further, the willingness
to pay estimate used in Amendment 53 is too high, which in turn leads
to a significant overestimate of the net economic benefits resulting
from recreational harvest and invalid estimates of the net economic
benefits associated with each sector allocation alternative considered
in Amendment 53.
Response: The inflation-adjusted willingness to pay estimate in
Amendment 53 comes from a peer-reviewed article published in the North
American Journal of Fisheries Management (Carter and Liese 2012). This
estimate is specific to grouper and the study included species that
recreational anglers would consider good substitutes for Gulf red
grouper. In contrast, the Environmental Protection Agency's (EPA)
estimates of economic value per recreationally harvested fish
referenced in the comments are from very old studies. Specifically,
although the comments suggest the EPA estimates are from 2014 (<a href="https://www.epa.gov/sites/default/files/2015-05/documents/cooling-water_phase-4_benefits_2014.pdf">https://www.epa.gov/sites/default/files/2015-05/documents/cooling-water_phase-4_benefits_2014.pdf</a>) and thus more recent than the estimate used in the
amendment, the EPA's meta-analysis was actually conducted in 2006
(<a href="https://www.epa.gov/sites/default/files/2015-04/documents/cooling-water_phase-3_regional-benefits_2006.pdf">https://www.epa.gov/sites/default/files/2015-04/documents/cooling-water_phase-3_regional-benefits_2006.pdf</a>). Further, a review of the
2006 meta-analysis reveals that it was based on 48 studies that were
published between 1982 and 2004 founded on survey data collected
between 1977 and 2001. In addition, the meta-analysis included 21
studies based on random utility models, 11 based on travel cost models,
and 20 studies that were based on stated preference models. Also, only
two studies in the EPA analysis were specific to the Gulf, and one of
those was limited to ``small game'' species that are not comparable to
red grouper. As the EPA estimates are not comparable to grouper, they
are not appropriate for use in Amendment 53. The estimate from Carter
and Liese (2012) is specific to grouper and also more recent than the
EPA estimates.
Some of these comments also suggest that use of the estimate from
Carter and Liese (2012) in Amendment 53 was inconsistent with NS 2
because the uncertainty around the point estimate of $110 per
recreationally harvested fish was not specifically provided in
Amendment 53. Carter and Liese (2012) do provide an estimate of the
confidence interval (i.e., 8 percent) reflecting the uncertainty around
the point estimate. Given this estimate of uncertainty, the lower and
upper bounds for the point estimate are $101.20 and $118.80,
respectively. Importantly, use of the lower and upper bounds would not
affect the relative estimates of net economic benefits across the
alternatives considered under Action 1 in Amendment 53. Some of these
comments also reference more recent analyses in Carter, Liese, and
Lovell (2022) and Carter, Lovell and Liese (2020), to support the
assertion that the estimate from 2012 Carter and Liese study is too
high. Both of the more recent papers look at differences in economic
value associated with different bag limits (i.e., option prices).
[[Page 25586]]
However, the 2022 paper was not available at the time the analysis for
Amendment 53 was conducted. The 2020 paper provides option prices for
different recreational bag limits rather than an economic value per
fish given a change in expected harvest. The analysis in Amendment 53
requires an estimate of the latter. Therefore, consistent with NS 2,
estimates of consumer surplus and expected changes to consumer surplus
in the recreational sector under the different alternatives are based
on the best available science at the time the analysis for Amendment 53
was conducted.
Comment 39: The economic analysis of net economic benefits should
have included differences in the carbon footprints and resulting costs
associated with commercially harvested fish versus recreationally
harvested fish. A ``back of the envelope'' approach for how to look at
those differences was provided.
Response: No guidance is currently available to Federal agencies
regarding a preferred or acceptable approach to look at the issue of
carbon footprints in the context of fisheries. Further, the commenter's
suggested approach has not undergone any type of review and NMFS has
concerns with the suggested approach. For example, it is inappropriate
to compare fuel use for commercial and recreational sectors because the
objective functions for commercial and recreational fishing are
completely different. Commercial fuel use is a cost to vessel owners so
vessel operators have an incentive to minimize fuel consumption to
maximize their share of the profit. Commercial fuel use should be based
on time rather than landings; otherwise, high catch per unit (CPUE)
fisheries will appear to be more fuel efficient than lower CPUE
fisheries. Recreational trips maximize utility from the experience, and
the motivation for recreational fishing is not just about catching or
keeping fish. Further, recreationally harvested fish that are caught,
but not landed, are not considered in the estimates. The commenter's
estimate of fuel expense comes from studies from 2005 and 2009, and
thus is based on outdated data for this purpose, particularly as more
recent and more consistent information is reported in Lovell et al.
(2020). Moreover, applying a recent fuel price to back-calculate fuel
consumption from data collected in a particular year is incorrect
because fuel consumption by either commercial or recreational fishermen
is not independent of the price of fuel. Recreational trip expenditures
depend on fuel prices at the time the expense is incurred. Thus, the
fuel price in the year the data were collected is necessary. Observer
data from commercial fisheries show that trip duration goes down as
fuel prices increase. Expecting that recreational trip duration and the
number of trips would also respond to changes in the fuel price is
reasonable.
Comment 40: The economic analysis of net economic benefits in
Amendment 53 did not follow the same approach as in Amendment 28 to the
FMP, and the estimated loss in producer surplus to the commercial
harvesting sector was based on an unpublished paper.
Response: As explained in the NS 2 Guidelines, an ``FMP must take
into account the best scientific information available at the time of
preparation'' (50 CFR 600.315(e)(1)). As new information becomes
available, that will often lead to modifications in the analytical
approach. For example, when the Council was preparing Amendment 28 in
2015, NMFS did not have direct estimates of net cash flow or net
operating revenue that could be used to more directly and accurately
estimate changes in producer surplus and profit in the commercial
harvesting sector. Therefore, Amendment 28 used the average annual
allocation price as a proxy for these values. Where appropriate and
necessary, Amendment 53 continues to explain that ``economic theory
suggests that annual allocation (quota) prices should reflect expected
annual economic profits, which allows economic profits to be estimated
indirectly. It is always preferable to use direct estimates when they
are available rather than proxies. According to information provided on
pages 65-68 of Amendment 53, estimates of net cash flow and net
operating revenue in the commercial harvesting sector were available
from Overstreet and Liese (2018b), and therefore were used in the
economic analysis of Amendment 53. NMFS had estimates of trip net cash
flow and trip net revenue for for-hire trips that were used in
Amendment 53 to estimate expected changes in producer surplus and
profits in the for-hire sector, but such information was unavailable
when Amendment 28 was being considered.
Comment 41: The general approach taken in the analysis of net
economic benefits in Amendment 53 is invalid for the same reasons the
approach taken in Amendment 28 was invalid, or it is invalid because
the Council's SSC did not review it.
Response: Absent a request from the Council, the SSC is not
required to review economic or other specific analyses in an FMP
amendment. With respect the analysis in Amendment 53, these comments
essentially assert that net economic benefits or changes to net
economic benefits cannot be estimated because harvest privileges have
not been assigned in the recreational sector as they have been in the
commercial sector. This assertion is based on a misunderstanding of
statements in Amendment 28 as well as in the referenced literature.
Specifically, because fishing privileges have not been assigned in the
recreational sector, economic theory does suggest that it is not
possible to maximize net economic benefits to the Nation because
resources are not being efficiently allocated in that sector. As a
result, it is not possible to maximize net economic benefits to the
Nation from the fishery as a whole regardless of which sector
allocation is selected. However, the economic analysis in Amendment 53
does not suggest that the selected sector allocation maximizes net
economic benefits to the Nation, or what sector allocation would
maximize net economic benefits to the Nation. It only demonstrates that
the selected sector allocation in conjunction with the resulting ACLs
is expected to generate relatively greater net economic benefits to the
Nation compared to the other alternatives that were considered.
Therefore, the economic analysis in Amendment 53 does not conflict with
the analysis in Amendment 28 or the referenced literature, and NMFS
believes it is not invalid as suggested by the commenter.
Comment 42: Amendment 53 could lead to a significant increase in
imports of grouper because of the reduction in commercial harvest of
Gulf red grouper.
Response: It is possible that imports of grouper and snapper
products that directly compete with Gulf red grouper could increase in
response to the decrease in Gulf red grouper landings. However, given
that landings are expected to decrease by 600,000 lb (272,155 kg), even
if all of that production was replaced by imports, that would only lead
to about a 1 percent increase in imports, since total imports of
grouper and snapper were about 62.1 million lb (28.2 million kg) in
2018 (see page 71 of Amendment 53).
Comment 43: The Initial Regulatory Flexibility Act is faulty
because it does not address adverse effects on restaurants and seafood
dealers, and all such businesses should be considered small businesses.
Response: The comment does not provide any information to support
the conclusion that all seafood dealers and restaurants are small under
the Small Business Administration's definitions for businesses in those
industries. Further, the Regulatory Flexibility Act
[[Page 25587]]
requires an analysis of effects on entities that are expected to be
directly regulated by the rule. The rule for Amendment 53 would
directly regulate commercial fishing businesses that possess red
grouper shares and for-hire fishing businesses that target red grouper,
not seafood dealers or restaurants. Potential indirect economic effects
on dealers are discussed on page 70 and in section 4.2.3 of Amendment
53 (pages 111-123).
Classification
Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS
Assistant Administrator has determined that this final rule is
consistent with Amendment 53, the FMP, other provisions of the
Magnuson-Stevens Act, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866. The Magnuson-Stevens Act provides
the legal basis for this final rule. No duplicative, overlapping, or
conflicting Federal rules have been identified.
A final regulatory flexibility analysis (FRFA) was prepared. The
FRFA incorporates the initial regulatory flexibility analysis (IRFA), a
summary of the significant issues raised by the public comments in
response to the IRFA, NMFS' responses to those comments, and a summary
of the analyses completed to support the action. NMFS' responses to
public comments regarding the IRFA and the Executive Order 12866
analysis are in the SUMMARY section of the preamble. A copy of the full
analysis is available from NMFS (see ADDRESSES). A summary of the FRFA
follows.
The objective of this final rule is to use the best scientific
information available to establish Gulf red grouper sector allocations,
ACLs, and ACTs, thereby ensuring that the sector ACLs accurately
reflect the commercial and recreational sectors' historical
participation and that the recreational ACL is consistent with data
used to monitor recreational landings and trigger AMs. All monetary
estimates in the following analysis are in 2019 dollars.
Amendment 53 revises the sector allocations of the total ACL for
Gulf red grouper from 76 percent for the commercial sector and 24
percent for the recreational sector to 59.3 percent for the commercial
sector and 40.7 percent for the recreational sector. The current OFL,
ABC, and total ACL are 14.16 million lb (6.42 million kg), 13.92
million lb (6.31 million kg), and 4.16 million lb (1.89 million kg),
respectively. The recreational portion of these values are based on
MRIP-CHTS data. Amendment 53 changes the OFL and ABC to 4.66 million lb
(2.11 million kg) and 4.26 million lb (1.93 million kg), consistent
with the results of the most recent stock assessment and the
recommendations of the Council's SSC, and sets the total ACL equal to
the ABC of 4.26 million lb (1.93 million kg). The recreational portion
of these values are based on MRIP-FES data. Applying the new sector
allocations reduces the commercial ACL from 3.16 million lb (1.43
million kg) to 2.53 million lb (1.15 million kg). The new sector
allocations also reduces the recreational ACL from 2.10 million lb
(0.95 million kg) in MRIP-FES units or 1.00 million lb (0.45 million
kg) in MRIP-CHTS units, to 1.73 million lb (0.78 million kg) in MRIP-
FES units. This final rule and Amendment 53 retain the current 5
percent buffer between the commercial ACL and ACT (quota), which
results in a reduction of the commercial ACT (quota) from 3.00 million
lb (1.36 million kg) to 2.40 million lb (1.09 million kg). However, it
increases the buffer between the recreational ACL and ACT from 8
percent to 9 percent, and thereby reduces the recreational ACT from
1.59 million lb (0.72 million kg) to 1.57 million lb (0.71 million kg),
given the reduction in the recreational ACL. As a result, this final
rule is expected to directly regulate commercial fishing businesses
that possess Gulf red grouper shares in the grouper-tilefish IFQ
program and for-hire fishing businesses that target red grouper.
The commercial red grouper quota is allocated annually based on the
percentage of red grouper shares in each IFQ account (e.g., if an
account possesses 1 percent of the red grouper shares and the
commercial quota is 1.00 million lb (0.45 million kg), then that
account would receive 10,000 lb (4,536 kg) of commercial red grouper
quota). Although it is common for a single IFQ account with red grouper
shares to be held by a single business, some businesses have multiple
IFQ accounts with red grouper shares. As of February 19, 2020, 495 IFQ
accounts held red grouper shares. These accounts and red grouper shares
were owned by 436 businesses. Thus, NMFS assumes this final rule
directly regulates 436 commercial fishing businesses.
A valid Federal charter vessel/headboat (for-hire) permit for Gulf
reef fish is required to legally harvest red grouper in the Gulf. NMFS
does not possess complete ownership data regarding for-hire businesses
that hold these permits, and thus potentially harvest red grouper.
Therefore, it is not currently feasible to accurately determine
affiliations between vessels and the businesses that own them. As a
result, for purposes of this analysis, NMFS assumes each for-hire
vessel is independently owned by a single business, which is likely to
result in an overestimate of the actual number of for-hire fishing
businesses directly regulated by this final rule.
NMFS also does not have data indicating how many for-hire vessels
actually harvest Gulf red grouper in a given year. However, in 2019,
there were 1,277 vessels with valid Federal charter vessel/headboat
permits for Gulf reef fish. Of these 1,277 vessels, 90 vessels are used
primarily for commercial fishing purposes and thus are not considered
for-hire fishing businesses in this analysis. Further, Gulf red grouper
is only targeted and almost entirely harvested in waters off the west
coast of Florida. Of the 1,277 vessels with valid Federal charter
vessel/headboat permits for Gulf reef fish, 799 were homeported in
Florida. Of these permitted vessels, 60 are primarily used for
commercial fishing rather than for-hire fishing purposes and thus are
not considered for-hire fishing businesses. In addition, 48 of these
permitted vessels are considered headboats. Compared to charter
vessels, headboats take a larger group of anglers to harvest a diverse
range of species on a trip, and therefore do not typically target a
particular species. Therefore, NMFS assumes that no headboats would be
directly affected as a result of this final rule. However, charter
vessels often target red grouper. Of the 799 vessels with valid Federal
charter vessel/headboat permits for Gulf reef fish that are homeported
in Florida, 691 vessels are charter vessels. A recent study reported
that 76 percent of charter vessels with valid Federal charter vessel/
headboat permits for Gulf reef fish were active in the Gulf during 2017
(i.e., 24 percent were not fishing). A charter vessel would only be
directly affected by this final rule if it is fishing. Given this
information, our best estimate of the number of charter vessels that
are likely to harvest Gulf red grouper in a given year is 525, and thus
this final rule is estimated to directly affect 525 for-hire fishing
businesses.
For RFA purposes, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (50 CFR 200.2). A business primarily
involved in the commercial fishing industry is classified as a small
business if it is independently owned and operated, is not dominant in
its field of operation (including its affiliates), and its combined
annual
[[Page 25588]]
receipts (revenue) are not in excess of $11 million for all of its
affiliated operations worldwide. NMFS does not collect revenue data
specific to commercial fishing businesses that have IFQ accounts;
rather, revenue data are collected for commercial fishing vessels in
general. It is not possible to assign revenues earned by commercial
fishing vessels back to specific IFQ accounts and the businesses that
possess them because quota is often transferred across many IFQ
accounts before it is used by a vessel for harvesting purposes, and
specific units of quota cannot be tracked. However, from 2014 through
2018, the maximum annual gross revenue earned by a single vessel was
about $2.39 million, which occurred in 2015. The average gross revenue
per vessel was about $143,000 in that year. By 2018, the maximum and
average gross revenue per vessel had decreased to about $1.04 million
and $96,000, respectively. Based on this information, all commercial
fishing businesses directly regulated by this final rule are determined
to be small entities for the purpose of this analysis.
For other industries, the Small Business Administration has
established size standards for all major industry sectors in the U.S.,
including for-hire businesses (NAICS code 487210). A business primarily
involved in for-hire fishing is classified as a small business if it is
independently owned and operated, is not dominant in its field of
operation (including its affiliates), and has annual receipts (revenue)
not in excess of $8 million for all its affiliated operations
worldwide. The maximum annual gross revenue for a single headboat in
the Gulf was about $1.38 million in 2017. On average, annual gross
revenue for headboats in the Gulf is about three times greater than
annual gross revenue for charter vessels, reflecting the fact that
businesses that own charter vessels are typically smaller than
businesses that own headboats. Based on this information, all for-hire
fishing businesses directly regulated by this final rule are determined
to be small businesses for the purpose of this analysis.
If implemented, NMFS expects this final rule to directly regulate
436 of the 532 businesses with IFQ accounts, or approximately 82
percent of those commercial fishing businesses. Further, NMFS expects
this final rule to directly regulate 525 of the 1,187 for-hire fishing
businesses with valid Federal charter vessel/headboat permits in the
Gulf reef fish fishery, or approximately 44 percent of those for-hire
fishing businesses. NMFS has determined that, for the purpose of this
analysis, all directly regulated commercial and for-hire fishing
businesses are small entities. Based on this information, NMFS expects
the final rule to affect a substantial number of small entities.
Because revenue and cost data are not collected for the commercial
fishing businesses that are expected to be directly regulated by this
final rule, direct estimates of their economic profits are not
available. However, economic theory suggests that annual allocation
(quota) prices should reflect expected annual economic profits, which
allows economic profits to be estimated indirectly.
Further, the 436 commercial fishing businesses that own red grouper
shares, and therefore receive red grouper quota at the beginning of
each calendar year, also own shares and receive quota in the other IFQ
share categories, i.e., red snapper, gag, shallow-water grouper, deep-
water grouper, and tilefish. These businesses earn economic profits
because of their ownership of these shares as well as their red grouper
shares. However, economic profits are only realized if the allocated
quota is actually used for harvesting purposes (i.e., no economic
profits will accrue unless the quota results in the production and sale
of seafood). Because the average annual commercial landings of red
grouper from 2014-2018 and the red grouper commercial quota are almost
identical, NMFS assumes that all of the red grouper commercial quota
will be harvested in the foreseeable future. Similarly, because
practically all of the commercial red snapper quota has been used for
harvesting in recent years, NMFS assumes that all of the commercial red
snapper quota allocated to these businesses will be harvested in the
foreseeable future. However, based on 2015-2019 data, NMFS expects that
only 84 percent of the deep-water grouper commercial quota, 50 percent
of the gag commercial quota, 35 percent of the shallow-water grouper
commercial quota, and 78 percent of the tilefish commercial quota
allocated to these businesses will be used for harvesting in the
foreseeable future. Given these quota utilization rates in combination
with average annual allocation prices in 2019 and annual commercial
quotas in 2020 by share category, total economic profits for commercial
fishing businesses with red grouper shares are estimated to be at least
$18.61 million. This estimate does not account for any economic profits
that may accrue to commercial fishing businesses that own red grouper
shares from the harvest of non-IFQ species. Such profits are likely to
be small because harvest of IFQ species accounts for around 85 percent
of commercial IFQ vessels' average annual gross revenue, and economic
profits from the harvest of non-IFQ species tend to be much smaller
than those from IFQ species. Given that there are 436 commercial
fishing businesses that own red grouper shares, the average annual
expected economic profit per commercial fishing business is at least
$42,700.
However, most of these economic profits (82 percent) are the result
of owning red snapper shares. Only approximately $1.77 million (or 9.5
percent) of their economic profits are due to the ownership of red
grouper shares. This final rule is only expected to affect economic
profits from the ownership of red grouper shares. Specifically, the
action that reduces the OFL, ABC, total ACL, and the commercial sector
allocation of the total ACL results in a reduction of the red grouper
commercial ACL from 3.16 million lb (1.43 million kg) to 2.53 million
lb (1.15 million kg) and the commercial red grouper ACT (quota) from
3.00 million lb (1.36 million kg) to 2.40 million lb (1.09 million kg).
Given an annual allocation price of $0.59 per lb ($1.30 per kg) in 2019
for red grouper, this reduction in the commercial red grouper quota is
expected to reduce economic profits to these commercial fishing
businesses by $354,000, or about $812 per business. Thus, economic
profit is expected to be reduced by no more than 1.9 percent on average
per commercial fishing business.
Based on the most recent information available, average annual
profit is $26,514 per charter vessel. The action that modifies the
sector allocations, OFL, ABC, and total ACL results in a reduction of
the red grouper recreational ACL from 2.10 million lb (0.95 million kg)
in MRIP-FES units to 1.73 million lb (0.78 million kg) in MRIP-FES
units. The ACL reduction is expected to reduce the recreational season
length by 12 days, and thereby cause the number of trips targeting red
grouper on charter vessels to decrease by 665 angler trips. Net Cash
Flow per Angler Trip (CFpA) is the best available estimate of profit
per angler trip by charter vessels. CFpA on charter vessels is
estimated to be $141 per angler trip. Thus, NMFS expects the estimated
reduction in charter vessel profits from this action to be $93,723, or
$179 per vessel.
The action that increases the buffer between the recreational ACL
and recreational ACT from 8 percent to 9 percent decreases the
recreational ACT from 1.59 million lb (0.72 million kg) to 1.57 million
lb (0.71 million kg). The ACT reduction is only germane if the
[[Page 25589]]
recreational sector exceeds its ACL in the future, as that would
trigger the post-season AM, causing the recreational sector to be
constrained to the recreational ACT rather than the recreational ACL.
Average annual landings in the recreational sector from 2016 through
2019 are greater than the recreational ACL, and so it is possible that
the post-season AM may be triggered, causing the recreational sector,
including the for-hire component, to be constrained to the ACT. If the
post-season AM is triggered, the additional reduction in the
recreational season length caused by this action is estimated to be 4
days, which NMFS expects to cause the number of trips targeting red
grouper on charter vessels to decrease by an additional 204 angler
trips. Thus, if the post-season AM is triggered, NMFS estimates that
the reduction in charter vessel profits would be $28,764, or $55 per
vessel.
Based on the above, NMFS expects the total reduction in profits for
charter vessels from this final rule to be no more than $122,487, or
$234 per charter vessel. Thus, profit would potentially be reduced by
approximately 0.9 percent on average per for-hire fishing business.
Five alternatives, including the status quo, were considered for
the action to set the sector allocations for red grouper at 59.3
percent for the commercial sector and 40.7 percent for the recreational
sector, and set the OFL, ABC, total ACL, commercial ACL, and
recreational ACL at 4.66 million lb (2.11 million kg), 4.26 million lb
(1.93 million kg), 4.26 million lb (1.93 million kg), 2.53 million lb
(1.15 million kg), and 1.73 million lb (0.78 million kg) in MRIP-FES
units, respectively. The status quo alternative would have maintained
the current sector allocations for red grouper at 76 percent for the
commercial sector and 24 percent for the recreational sector, and
maintained the OFL, ABC, total ACL, commercial ACL, and recreational
ACL of 14.16 million lb (6.42 million kg), 13.92 million lb (6.31
million kg), 4.16 million lb (1.89 million kg), 3.16 million lb (1.43
million kg), and 1.00 million lb (0.45 million kg) in MRIP-CHTS units,
respectively. In general, the status quo alternative was not selected
because it is not based on the best scientific information available.
More specifically, the status quo alternative would continue to use
estimates based on MRIP-CHTS data rather than MRIP-FES data for the
recreational sector, even though MRIP-FES data have been determined to
be the best scientific information available for estimating and
monitoring landings and effort in the recreational sector. The status
quo alternative would have also set OFL and ABC above the values
produced by the most recent stock assessment and recommended by the
Council's SSC.
A second alternative would have maintained the current sector
allocations for red grouper at 76 percent for the commercial sector and
24 percent for the recreational sector, and resulted in an OFL, ABC,
total ACL, commercial ACL, and recreational ACL of 5.35 million lb
(2.43 million kg), 4.90 million lb (2.22 million kg), 4.90 million lb
(2.22 million kg), 3.72 million lb (1.69 million kg), and 1.18 million
lb (0.54 million kg) in MRIP-FES units, respectively. This alternative
was not selected as it would have resulted in considerably lower net
economic benefits to the Nation compared to the action in the final
rule. In addition, because of the conversion from MRIP-CHTS to MRIP-
FES, the second alternative would have also effectively resulted in a
significant reallocation of the total ACL from the recreational sector
to the commercial sector. As a result, this alternative would have
caused a disproportionately larger adverse effect on the recreational
sector relative to the commercial sector in comparison to the action in
the final rule, which was not considered to be fair and equitable.
A third alternative would have set the sector allocations for red
grouper at 68.7 percent for the commercial sector and 31.3 percent for
the recreational sector, and resulted in an OFL, ABC, total ACL,
commercial ACL, and recreational ACL of 5.03 million lb (2.28 million
kg), 4.60 million lb (2.09 million kg), 4.60 million lb (2.09 million
kg), 3.16 million lb (1.43 million kg), and 1.44 million lb (0.65
million kg) in MRIP-FES units, respectively. Similar to the second
alternative, the third alternative was not selected as it would have
resulted in considerably lower net economic benefits to the Nation
compared to the action in the final rule. Further, the third
alternative would have maintained the current commercial ACL despite
the required reduction in the total ACL. While this would have resulted
in no effects on the commercial sector, it would have also resulted in
a reallocation of the total ACL from the recreational sector to the
commercial sector and thereby caused large adverse effects on the
recreational sector compared to the action in the final rule, which was
not considered to be fair and equitable.
A fourth alternative would have set the sector allocations for red
grouper at 60.5 percent for the commercial sector and 39.5 percent for
the recreational sector, and resulted in an OFL, ABC, total ACL,
commercial ACL, and recreational ACL of 4.70 million lb (2.13 million
kg), 4.30 million lb (1.95 million kg), 4.30 million lb (1.95 million
kg), 2.60 million lb (1.18 million kg), and 1.70 million lb (0.77
million kg) in MRIP-FES units, respectively. A fifth alternative would
have set the sector allocations for red grouper at 59.7 percent for the
commercial sector and 40.3 percent for the recreational sector, and
resulted in an OFL, ABC, total ACL, commercial ACL, and recreational
ACL of 4.67 million lb (2.12 million kg), 4.28 million lb (1.94 million
kg), 4.28 million lb (1.94 million kg), 2.56 million lb (1.16 million
kg), and 1.72 million lb (0.78 million kg) in MRIP-FES units,
respectively. The fourth and fifth alternatives were not selected
because they did not use the same time series of years as the original
sector allocation and therefore would not as accurately reflect the
historical participation of the commercial and recreational sectors in
the fishery, which is contrary to the Council's objectives. These
alternatives were also not selected as they resulted in slightly lower
net economic benefits to the Nation compared to the action in the final
rule.
Two alternatives, including the status quo, were considered for the
action to maintain the buffer between the commercial ACL and commercial
ACT of 5 percent and increase the buffer between the recreational ACL
and recreational ACT from 8 percent to 9 percent. The status quo
alternative would have maintained the buffer between the commercial ACL
and commercial ACT of 5 percent and maintained the buffer between the
recreational ACL and recreational ACT of 8 percent. The status quo
alternative was not selected because the current recreational buffer is
based on MRFSS data, which are no longer used for quota monitoring
because they are no longer the best scientific information available.
The second alternative would have reduced the commercial buffer
from 5 percent to 0 percent and increased the recreational buffer from
8 percent to 9 percent. Both the red grouper and gag share categories
in the commercial grouper-tilefish IFQ program have a multi-use
provision that allows a portion of the red grouper quota to be
harvested under the gag allocation, and a portion of the gag quota to
be harvested under the red grouper allocation. Each year, the program
assigns a portion of each shareholder's red grouper and gag's
allocations to the multi-use allocation category. The intent of the
multi-use provision is to provide for allocation if either gag or red
grouper
[[Page 25590]]
are landed as incidental catch. The second alternative was not selected
because, based on recent data, the gag multi-use allocation would be
zero. As a result, red grouper could not be landed with gag allocation,
which is contrary to the purpose of the multi-use provision in the
grouper-tilefish IFQ program.
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a FRFA, the agency shall publish
one or more guides to assist small entities in complying with the rule,
and shall designate such publications as ``small entity compliance
guides.'' The agency shall explain the actions a small entity is
required to take to comply with a rule or group of rules. As part of
this rulemaking process, NMFS prepared a fishery bulletin, which also
serves as a small entity compliance guide. Copies of this final rule
are available from the Southeast Regional Office, and the guide, i.e.,
fishery bulletin, will be sent to all known industry contacts in the
Gulf reef fish fishery and be posted at: <a href="https://www.fisheries.noaa.gov/tags/small-entity-compliance-guide?title=&field_species_vocab_target_id=&field_region_vocab_target_id%5B1000001121%5D=1000001121&sort_by=created">https://www.fisheries.noaa.gov/tags/small-entity-compliance-guide?title=&field_species_vocab_target_id=&field_region_vocab_target_id%5B1000001121%5D=1000001121&sort_by=created</a>. The guide and this final
rule will be available upon request.
This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995.
References
Carter, D.W. and C. Liese. 2012. The Economic Value of Catching and
Keeping or Releasing Saltwater Sport Fish in the Southeast USA.
North American Journal of Fisheries Management, 32:4, pages 613-625.
<a href="http://dx.doi.org/10.1080/02755947.2012.675943">http://dx.doi.org/10.1080/02755947.2012.675943</a>.
Carter, D.W., S.J. Lovell and C. Liese. 2020. Does angler
willingness-to-pay for changes in harvest regulations vary by state?
Results from a choice experiment in the Gulf of Mexico. Marine
Policy, 121, page 104196.
Carter, D.W., C. Liese and S.J. Lovell. 2022. The option price of
recreational bag limits and the value of harvest. Marine Resource
Economics, 37(1), pages 35-52.
Dettloff, K. and V. Matter. 2019. Sample size sensitivity analysis
for calculating MRIP weight estimates. SEDAR67-WP-06. SEDAR, North
Charleston, SC. 6 pages.
Keithly W.R., Jr. and M. Tabarestani. 2018. The Gulf of Mexico
grouper/tilefish fishery after introduction of an individual fishing
quota program: The impact on ex-vessel prices. <a href="https://gulfcouncil.org/wp-content/uploads/Demand-Analysis.pdf">https://gulfcouncil.org/wp-content/uploads/Demand-Analysis.pdf</a>.
Keithly W.R., Jr. and H. Wang. 2018. Results from the National
Marine Fisheries Service 2016 Gulf of Mexico Grouper Tilefish IFQ
Survey. 50 pages. <a href="https://gulfcouncil.org/wp-content/uploads/Dealer-Survey.pdf">https://gulfcouncil.org/wp-content/uploads/Dealer-Survey.pdf</a>.
Lovell, S., J. Hilger, E. Rollins, N.A. Olsen, and S. Steinback.
2020. The Economic Contribution of Marine Angler Expenditures on
Fishing Trips in the United States, 2017. U.S. Dep. Commerce, NOAA
Tech. Memo. NMFS-F/SPO-201, 80 pages.
Overstreet, E. and C. Liese. 2018b. Economics of the Gulf of Mexico
Reef Fish Fishery, 2016. NOAA Technical Memorandum NMFS-SEFSC-725.
116 pages.
List of Subjects in 50 CFR Part 622
Annual catch limit, Fisheries, Fishing, Gulf, Red grouper, Reef
fish.
Dated: April 26, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 622 is amended
as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH
ATLANTIC
0
1. The authority citation for part 622 continues to read as follows:
Authority: 16 U.S.C. 1801 et seq.
0
2. In Sec. 622.39, revise paragraph (a)(1)(iii)(C) to read as follows:
Sec. 622.39 Quotas.
* * * * *
(a) * * *
(1) * * *
(iii) * * *
(C) Red grouper--2.40 million lb (1.09 million kg).
* * * * *
0
3. In Sec. 622.41, revise the last sentence of paragraph (e)(1) and
revise paragraph (e)(2)(iv) to read as follows:
Sec. 622.41 Annual catch limits (ACLs), annual catch targets (ACTs),
and accountability measures (AMs).
* * * * *
(e) * * *
(1) * * * The commercial ACL for red grouper, in gutted weight, is
2.53 million lb (1.15 million kg).
(2) * * *
(iv) The recreational ACL for red grouper, in gutted weight, is
1.73 million lb (0.78 million kg). The recreational ACT for red
grouper, in gutted weight, is 1.57 million lb (0.71 million kg).
* * * * *
[FR Doc. 2022-09300 Filed 4-29-22; 8:45 am]
BILLING CODE 3510-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on May 2, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.